If you are a graduate of a foreign medical school who came to the U. S. before January 10, 1978, on either an H or J visa, you qualify as a special immigrant if you can meet all of the following conditions:
• you were permanently licensed to practice medicine in some U. S. state on or before January 9, 1978
• you were physically in the U. S. and practicing medicine on January 9, 1978
• you have lived continuously in the U. S. and practiced medicine since January 9, 1978, and
• if you came to the U. S. on a J-1 visa and were subject to the two-year home residency requirement, you got a waiver of the home residency requirement, or you have a “no objection letter” from your home government.
If you have been employed abroad by the U. S. government for at least 15 years, you may apply for a green card as a special immigrant. Your spouse and children may apply with you. To qualify, you must have the recommendation of the principal officer-in-charge of the U. S. government foreign office in which you were employed. The U. S. Secretary of State must also approve the recommendation. In addition, certain employees
of the American Institute in Taiwan can qualify under this category. The director of the Institute must recommend you.
If at the time of your birth both your parents were U. S. citizens and at least one had a prior residence in the U. S., you automatically acquired U. S. citizenship, with no other conditions for retaining it.
If only one parent was a U. S. citizen at the time of your birth, that parent must have resided in the U. S. for at least ten years, and at least five of those years must have been after your parent reached the age of 14. If your one U. S. citizen parent is your father and your birth was illegitimate (took place while your parents weren’t married), the same rules apply provided you were legally legitimated (your father acknowledged paternal responsibility) prior to your 21st birthday and you were unmarried at the time of legitimation.
If at the time of your birth, both your parents were U. S. citizens and at least one had a prior residence in the U. S., you automatically acquired U. S. citizenship, with no conditions for retaining it.
If only one parent was a U. S. citizen at the time of your birth, that parent must have resided in the U. S. for at least five years and at least two of those years must have been after your parent reached the age of 14. Even with only one U. S. citizen parent, there are still no conditions to retaining your citizenship. If your one U. S. citizen parent is your father and your birth was illegitimate (took place when the parents weren’t married), the same rules apply provided you were legally legitimated (your father acknowledged paternal responsibility) prior to your 18th birthday. Additionally, your father must have established paternity prior to your 18th birthday, either by acknowledgment or by court order, and must have stated, in writing, that he would support you financially until your 18th birthday.
It is not unusual for a child born and raised outside the U. S. to have acquired U. S. citizenship at birth from parents or grandparents without knowing it. The child, ignorant of the laws and circumstances affecting his or her birthright, then proceeds to lose U. S. citizenship by failing to fulfill u. s. residency requirements.
Congress sought to address this by adding a law for people who once held u. s. citizenship but lost it by failing to fulfill the residency requirements that were in effect before 1978. such persons can regain their citizenship by simply taking the oath of allegiance to the united states. It is not necessary that the person apply for naturalization. Contact a u. s. consulate or usCIs office for more information. The relevant statute is 8 u. s.C. §1435(d)(1), I. N.A. §324(d)(1).
First, a word of reassurance: Neither USCIS nor the consulates like to deny visas to eligible applicants. unless you are clearly ineligible, they will usually give you many chances to supplement your application and make it worthy of approval. Maybe this is the good side of a slow-moving bureaucracy—every decision takes time, even a negative one. (But don’t use this as an excuse to be sloppy in putting your application together the first time.)
If your visa or green card has been denied, and you didn’t use a lawyer, it’s time to hire one. This advice is particularly important if the denial was due to something more serious than a bureaucratic mistake or a lack of documentation on your part. You’ll definitely need a lawyer for the complicated procedures mentioned below, including removal proceedings and motions to reopen or reconsider. See Chapter 6 on finding a lawyer.
If the USCIS service center denies your initial visa petition (I-129F, I-130, or I-140), the best thing for your petitioner to do is to start over and file a new one. This is true even if a lawyer is helping you. There is an appeal process, but hardly anyone ever uses it. You’ll probably spend less time starting over, and the fee is about the same. Besides, no government agency likes to admit it was wrong, so there is a tactical advantage to getting a fresh start.
If uSCIS or the consulate denies an application farther along in the process, your response will depend on where you are—in the U. S. or in another country.
If you are applying for adjustment of status in the United States, there is technically no appeal after a denial. If, as is likely, you have no other legal right to be in the United States when the application is denied (such as a pending political asylum application), you will be placed in removal proceedings in Immigration Court. There, you will have the opportunity to renew your green card application before an immigration judge. In rare circumstances, you might need to file a motion to have your case reopened
or reconsidered; or you may need to file a separate suit in federal court.
Never ignore a notice to appear in Immigration Court. Attorneys regularly receive questions from immigrants who were scheduled for a hearing in Immigration Court and either forgot, couldn’t make it, or just hoped the problem would go away. Failing to appear for a court date is the worst thing you can do to your hopes of immigrating. It will earn you an automatic order of removal (deportation), which means that DHS can pick you up and put you on a plane home anytime, with no more hearings. You’ll also be hit with a ten-year prohibition on returning to the United States and further punishments if you return illegally.
If you are applying for a nonimmigrant (temporary) visa through a consulate outside the united states, you have no appeal after a denial. The consulate is at least required to tell you the reason for the denial, and often the fastest thing is to fix the problem and reapply. For example, if it appears that you have insufficient funds to support yourself while you’re in the united states, you might find an additional person to fill out an Affidavit of Support on your behalf. You can reapply, but most usually wait a certain amount of time first, for example three months. Ask the consulate for details.
If you are applying for an immigrant (permanent residence) visa, the consulate will give you one year after the denial of your visa application to provide information aimed at reversing the denial. At the end of the year, your application will close and you must start all over again. There is no appeal from the denial or the closure.
Don’t attempt multiple, inconsistent applications. The U. S. government keeps a record of all your applications for visas and green cards. If you come back a few years later with a new basis for immigrating, USCIS or the consulate will be happy to remind you of any past fraud or other reasons for inadmissibility. (Changing your name won’t work—by the end of the application process, the U. S. immigration authorities will have your fingerprints.)
If your case turns into a true bureaucratic nightmare or a genuine miscarriage of justice, your U. S. citizen or permanent resident petitioner or employer can ask a u. s. congressperson for help. some of them have a staff person dedi
cated to helping constituents who have immigration problems. A simple inquiry by a congressperson can end months of usCIs or consular stonewalling or inaction. In rare cases, the congressperson’s office might be willing to put some actual pressure on usCIs or the consular office.
EXAMPLE: Rodrigo, a U. S. citizen, was trying to get permission for his daughter sandra to immigrate from Mexico. She attended her visa interview and was told to come back with more proof that she would be financially supported and not become a public charge. Although Rodrigo’s income was already over the Poverty Guidelines, he found a joint sponsor, who submitted an additional Affidavit of Support for Sandra. The consulate still wasn’t willing to grant the visa. Rodrigo consulted with an attorney, who wrote letters to the consulate—but got no reply. Finally his attorney wrote a letter to Rodrigo’s con – gressperson asking for help. They submitted copies of all the relevant documents so that the congress – person would fully understand the problem. The visa was granted— with no explanation—a week after the congressperson’s inquiry.
Your congressperson probably won’t be surprised to hear from you. Illinois Congresswoman Janice Schakowsky reported that eight out of ten calls from her constituents were complaints about the INS (as USCIS was then called). (See “Unchecked Power of the INS Shatters American Dream,” by Kim Christensen, Richard Read, Julie Sullivan, and Brent Walth, The Oregonian, Sunday, December 20, 2000.) ■
After the medical exam, you and your accompanying children will report to the consulate for the interview. Bring with you to the interview the items on the checklist above, and anything else the consulate requested. The interview process involves verification of your application’s accuracy and an inspection of your documents.
For details on what to expect during your consular visa interview, see Chapter 4. Also see Chapter 4 if your visa is denied.
Normally, you must use the visa to enter the u. s. within six months, though the consulate can extend this period if necessary. The inspection process involves a U. S. border officer opening the sealed envelope containing your visa documents, and doing a last check to make sure you haven’t used fraud. The border officer has expedited removal powers, which means he or she can turn you right around and send you home if anything appears wrong in your packet or with your answers to the officer’s questions. Be polite and careful in answering.
When the officer is satisfied that everything is in order, he or she will stamp your passport to show that you’re now a K-1 visa holder, and you will be authorized to remain in the U. S. for 90 days. If you are bringing accompanying children, they must enter the U. S. at either the same time or after you do. You can apply for a work permit once you’re in the U. S.—see “Employment Authorization,” below.
If you’re planning to apply for a green card, your most important task at this point is to get married. You can’t apply
for the green card until you have an official government certificate of your marriage, which sometimes takes weeks after the wedding to be prepared. For more information on applying to adjust status based on your marriage, see Chapter 7. For a fuller discussion of all aspects of applying for a fiance visa and for your green card after you’ve arrived in the U. S. and gotten married, see the latest edition of Fiance and Marriage Visas:
A Couple’s Guide to U. S. Immigration, by Ilona Bray (Nolo).
To file an application for employment authorization for the 90 days you’re on a fiance visa, complete Form I-765 and file it with a USCIS service center, according to the instructions on the USCIS website. Answer Question 16 of the form "(a)(6)." Together with Form I-765, you must submit a copy of your I-94 card. The filing fee is $1 75.
You can also apply for a work permit when you submit your green card application. This may be worth waiting for—you’re unlikely to get the work permit approved before your 90 days are up and the permit would expire anyway. The work permit you receive after applying to adjust status will also last a lot longer.
Even if you don’t qualify for political asylum, you may, by showing that you’d be “more likely than not” to face persecution if returned to your country, qualify for a remedy called withholding of removal. This is a harder standard to meet than the standard for asylum, but it’s useful in cases where, for example, you missed the one-year deadline for applying for asylum, or you’ve committed minor crimes that make you ineligible for asylum but not ineligible for withholding.
Withholding of removal isn’t the best of remedies—it essentially means that although you won’t be granted asylum or the right to later get a green card, you won’t be removed from the U. S. and you’ll be allowed to work while you’re here. However, if you leave the U. S. on your own, you won’t be permitted to return, because you’ll have an order of removal in your file.
Another alternate remedy, for those who can show that is more likely than not that they would be tortured if returned to their home country, is available under an international treaty called the U. N. Convention Against Torture. While you don’t have to show that the persecution you experienced or fear is on account of one of the five protected grounds—race, religion, nationality, membership in a particular social group, or political opinion—these cases are not often granted, because it’s hard to prove that you’re more likely than not to face torture. Like withholding, however, it’s helpful for people who missed the one-year asylum filing deadline, or have committed crimes—even serious crimes won’t bar you from Torture Convention relief, though you may be kept in detention if you appear to be a danger to the United States.
You don’t need to separately apply for these remedies—applying for political asylum on Form I-589 will automatically include them.