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Dutch / American Immigration Issues
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Free Advice or Nightmare

The internet is full of information about immigration. It’s all very interesting, but usually only half right.

Rumors and misinformation are mostly wrong and following the advice of people, who may have the best intentions, may have serious consequences when you would follow it.

Advice or Nightmare #1

The US Citizenship & Immigration website (uscis.gov) lists information that may confuse many US citizens, who would like to sponsor their spouse. This is what the government website states:

 
If you want to become a lawful permanent resident based on the fact that you have a relative who is a citizen of the United States or a relative who is a lawful permanent resident, you must go through a multi-step process.
 
 
  •  
    First, the USCIS must approve an immigrant visa petition, I-130 Petition for Alien Relative for you. This petition is filed by your relative (sponsor) and must be accompanied by proof of your relationship to the requesting relative.

    If you would follow this advice the spouse could be in a lot of trouble. If and when the petition was filed while the spouse was in the US and subsequently wanted to travel, he/she could get stuck abroad, because the filing of the Immigrant Petition shows immigrant intent, and the spouse may be refused entry as a visitor. The US citizen would now have to file a K-3 visa petition (I-129F, which can take 4-8 months) or the spouse would have to wait abroad until a green card application was approved by the Consulate (could take 8-10 months or more).

    Every case contains different facts and deserves separate analysis. Things like date of entry, visa category, length of stay, unlawful presence, date of marriage, travel plans etc. all are important factors to consider when planning a course of action.

    Advice or Nightmare #2

    A forum on a website I recently visited had a man ask the question what to do about his pregnant girlfriend who had been in the US illegally for a while. He wanted to marry her. The baby was his. Could you she possibly stay?

    One response of a helpful blogger was that he should find another girlfriend. Another person wrote that staying in the country illegally was a crime and a felony and that this was a very dangerous situation. A third person provided the following insight:

    “I think she just wants to get the green card and then once she has it, she’ll bring over her real husband”.

    A lawyer, trying to help, actually responded to this question, but was cut short quickly by an Englishman who wrote:

     
    Its always nice to see the legal establishment aiding and abetting law breakers for a quick buck...........NOT

    The lawyer, by the way, was me. The truth, once again, is that all depends on the circumstances of the person asking the question. Is the father a US citizen or is he here temporarily? When the baby is born in the US , the baby is a US citizen. However, that alone won’t guarantee eligibility for the mother to stay in the country. We would need to know if this person has family in the US, how long this person has been in the US, if this person committed any crimes (by the way: staying in the US illegally is NOT a crime, and certainly not a felony; it is a violation of Federal law and could lead to deportation). Only a full analysis of the facts and documents could allow a lawyer, preferably someone who is specialized in immigration law, to give proper advice.

    Advice or Nightmare #3

    On another website, a Canadian received his green card in 2000 as a dependent through his parents, but never used it. He would occasionally visit the US but never maintained residence in the US . Moreover, he never used his green card to enter, because as a Canadian he would just show his passport. Now, five years later, he wants to move to the US for a job and wonders if his green card is valid. Here is some of the advice for your entertainment:

     

    Reply 1
    You have violated the rules by using a visa to enter (since any other visa is not relevant to you) and I'm not sure of the consequences. Go explain all this to an immigration attorney (it won't cost much) and see what they say.
     

     

    Reply 2.
    You have done what most would have done to retain residency, i.e. bank account, etc. The fact that your family lives in the US is helpful as well. The fact that you took employment for a year outside of the US without returning here to live after graduation is an issue. Most attorneys in your instance would tell you to apply for a returning resident visa from the US Consulate.
     

     

    Reply 3.
    Strictly from my layman perspective, I'd be tempted to wing it. Get back into the US by whatever method and live happily ever after. I don't think it's that big of a deal really, your card is valid till 2009 - and you've got plenty of assets and proof you maintain a life in the US . Therefore, no problem. I wouldn't go throwing my money away at a lawyer until a real problem occurs - which seems pretty unlikely having read your description. And if it does, I don't think it'll be a show stopper, more like a ripple.
     

     

    Reply 4.
    I think that's rubbish advice. If all you needed was to keep ties in America while leaving for more than a year, everyone would do it. Anyone knows it's all so easy to open and keep a bank account, credit cards and even have your family create bills in your name at their house. The BCIS are not stupid and you'd be crazy to take advice from people that don't know the real world.
     

     

    Reply 5 (by the person who originally posed the question).
    I actually have consulted an attorney, and as my luck would have it, they don't have an answer for me. They are looking into solutions, but no definitive answer as of yet. So far the best answer I've received is to cross over and just start using the Green Card again.

    Looks like the layman provided the advice this person wanted to hear. When it comes to health, relationships or immigration, the best advice we like to hear is “to wing it”. Good luck, my friend!

    Advice or Nightmare #4

    A recent posting: Lady asks the following question. I’m here on a B2 visitor visa which is still valid to June. My daughter already applied for a green card for me. Do I need to apply for an extension of my visa or is my green card application sufficient?

     

    Reply 1.
    You have to wait for the green card. The fact of applying for the green card show an immigrant intent, which will be a basis for denial of any application for a non-immigrant visa (such as the B-2)
     

     

    Reply 2.
    Its' the date of the I-94 that is important...if that is expired, your overstaying regardless of the visa expiration date.
      

     

    Reply 3.
    It'll all depend on how your getting your green card...if it is based on marriage to a USC, then an overstay would normally be forgiven.
     

     

    Reply 4.
    She is getting it through her child. It sounds like the I-485 was submitted in plenty of time before the I-94 expires, so I don't think she has overstayed. The only dodgy part might be that she entered on a tourist visa and is now planning to immigrate. As long as that wasn't the intention when she first arrived on the B2 visa, shouldn't be a problem.

    The lady then answers that she had no immigrant intent when she first entered, but that she would like to travel.

    The advice that these people gave isn’t wrong, but lacks the solution. If this lady wants to travel, she may file a travel document (I-131) upon the filing of the green card application. And she would still have to wait in the US until she gets this travel document.

    Summing it up

    These are real life samples of the advice that’s out there in cyber space. As you can see it is not all wrong, it’s just almost never completely accurate. The same can be said about the friendly conversations at parties. Questions like, “so when is the amnesty coming?”, “is it true that New York airport is better than Chicago ?”, “why does it take so long?” will continue to be answered by anyone who thinks they know more than the person asking the question. They will respond with remarks such as “I heard that with this new program my workers can become legally within 60 days”, “but the other lawyer did it” or “my friend got away with it”. Free advice is everywhere, but be careful. You usually pay for what you get.

    My advice: A professional advice is usually not quick and easy, because legal analysis deserves time, effort and real knowledge of every component of the question. Beware of anyone giving immigration advice without wanting to review the documents first.

    -- / --

    Other Immigration Topics:
      Being transferred to the United States, Intracompany Transferees (L-1's)  
      Free Advice or Nightmare  
      Getting a Social Security Number  
      Immigrant Intent  
      Labor Certification and PERM  
      Secure America and Orderly Immigration Act of 2005  
      Talented Specialty Workers with a Bachelor Degree (H-1B)  
      To invest is a long short-term affair (E-2)  
      USCIS Immigration Benefit Application Fees  
      You want to work in the US, but how? Here are some answers...  



    We hope you find this information helpful. If you have any immigration questions, please contact David Asser, either by phone at (602) 228 9773 or e-mail at david@asserlaw.com. You can also visit the website at www.asserlaw.com

     


     
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