Form I-864

By Atty. Monica Ganjoo

Question: What form is used for the Affidavit of Support?

Answer: If you are obtaining a green card for an individual, the form is I-864. However, if you are trying to obtain a visa for an individual (for example, a tourist or fiancée visa) you will need form I-134.

Question: Who can file the Affidavit of Support?

Answer: INA Section 213A(f)(1) provides the following requirements in order to be eligible as a sponsor: (1) one must be a United States citizen, national, or legal permanent resident; (2) one must be at least 18 years of age; and (3) one must be domiciled within the United States or any United States territory or possession.

Question: What does the law require in order for an individual to be admissible?

Answer: Under INA Section 213A(a)(1), there are four requirements: (1) the petitioner in all family-based immigrant visa petitions must submit an affidavit of support on Form I-864 or I-864EZ; (2) the definition of a sponsor excludes anyone who is not a
United States citizen, national, or lawful permanent resident (green card holder), at least 18 years of age, and domiciled in the United States or a United States territory or possession; (3) the sponsor must evidence “the means to maintain an annual income equal to at least 125 percent of the Federal poverty line”; and (4) the sponsor must agree to “provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty income line,” reimburse any federal or state agency that provides a means-tested benefit to the sponsored alien, agree “to submit to the jurisdiction of any Federal or State court” for enforcement of the affidavit, and inform United States Citizenship and Immigration Services (U.S. CIS) of any change of address.

Question: If a United States citizen lives abroad temporary, can he be considered to be domiciled in the United States if he is living abroad for employment purposes?

Answer: Yes, only if the employment is for one of the following: (1) the United States government; (2) an American institution of research recognized by the attorney general; (3) an American film or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States; (4) a subsidiary of the above film or corporation; (5) a public international organization of which the United States participates by treaty or statute; (6) the citizen is authorized to perform the ministerial or priestly functions of a religious denomination having a bond fide organization within the United States; or (7) the citizen is engaged solely as a missionary by a religious denomination or by an interdenominational mission organization having a bond fide organization within the United States.

Question: If a legal permanent resident (green card holder) lives abroad temporarily, can he be considered to be domiciled in the United States?

Answer: Yes, only if the legal permanent resident applies for and obtains the “preservation of residence” under INA Section 316(b) or 317. Section 316(b) refers to individuals that have been present in the United States for a minimum of one year after receiving legal permanent resident status, and who plan to stay outside of the United States for more than one year. To obtain this benefit, the individual must be working for one of the following: (1) the United States government; (2) an American institution of research organized by the attorney general; (3) an American film or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States; (4) a subsidiary of the above film or corporation, more than fifty percent of whose stock is owned by an American film or corporation; or (5) a public international organization of which the United States is a member by treaty or statute and by which the individual was not employed until after receiving his legal permanent resident status.

Question: What is the process of satisfying the income requirement?

Answer: First, you need to determine if the Petitioner, who is the true sponsor, can demonstrate that he has sufficient household income. If the Petitioner does not meet the income requirement, he may either provide a co-sponsor (this second sponsor must then meet the income requirement) or the sponsor may count certain assets that he, the sponsored immigrant, or other individuals that reside in his residence possess.

Question: What form is used by co-sponsors?

Answer: The co-sponsor will have to fill out the same form as the sponsor, which in an immigrant visa petition (green card case), would be form I-864.

Question: If the Petitioner (sponsor) is married and wishes to use the income of his spouse, what form does the spouse fill out?

Answer: The spouse would fill out form I-864A. Note that household members of the sponsor would also fill out form I-864A.

Question: Which immigrant visa categories (green card categories) do not need to have an Affidavit of Support?

Answer: (1) Applicants under the Cuban Adjustment Act; (2) Persons adjusting based on being granted cancellation of removal or suspension of deportation (are in deportation proceedings); (3) Applicants under the Nicaraguan Adjustment and Central American Relief Act; (4) Registry applicants; (5) Applicants under the Haitian Refugee Immigration Fairness Act; (6) Persons granted asylum or refugee status; (7) Special immigrant juveniles; (8) diversity visa lottery applicants; (9) widows and widowers applying for immigrant status based on prior marriage to a United States citizen (will need to file form I-864W though); and (10) battered spouses and children filing self-petitions based on a relationship to a United States citizen or legal permanent resident spouse or parent who was responsible for the battery or extreme cruelty (will need to file form I-864W though).

Question: During what period of the application process does an individual need to file the Affidavit of Support?

Answer: Under 8 CFR Section 213a.2(a)(1)(ii), this form needs to be filed at the time an intending immigrant is applying for an immigrant visa or adjustment of status. If the individual is applying for an immigrant visa at a United States Embassy, then the form needs to be filed with the National Visa Center prior to the interview at the Embassy. However, if filing for Adjustment of Status in the United States, the form needs to be filed with the I-485 package.

Question: Is the Affidavit of Support enforceable by the United States government?

Answer: Yes. The Affidavit of Support is a contract between the sponsor and the federal government. Under 8 CFR Section 213a.4(a), the sponsored beneficiary, or any federal, state, or local government agency or private entity that provides the beneficiary a benefit, can bring a civil action law suit against the sponsor. The request for reimbursement must include the following: (1) the date the Affidavit of Support was filed; (2) the sponsored immigrant’s name, alien registration number, address, and date of birth; (3) the type of means-tested public benefit the sponsored immigrant received; (4) the dates the immigrant received the benefit; and (5) the total amount of benefits received.

For more information, call Attorney Monica Ganjoo for a consultation.
Ganjoo Law Offices currently offer a consultation with Attorney Monica Ganjoo in San Francisco and San Jose. The Staff of Ganjoo Law Offices speak a total of six different languages. For a consultation with Monica Ganjoo, call one of her offices below:

San Francisco Office:
870 Market Street, Suite 340
San Francisco, CA 94102
(415) 495-3710

San Jose Office:
111 W. St. John Street, Suite 513
San Jose, CA 95113
(408) 975-0500

You Can File Bankruptcy While You are in Debt Settlement

By Atty. Crispin Lozano

Question: What is debt settlement?

Answer: Debt settlement or debt consolidation is a process to negotiate to lower your debt with the creditors. You can do this yourself or hire an agency. Credit card companies will not allow debt settlement if you are current in your payments. You need to be at least three to six months late to start debt settlement. Even if you hired a debt settlement company the creditors can still file a lawsuit against you while they are negotiating your account. Not all credit card companies agree to debt settlement. Some companies want immediate cash payment before agreeing to lower the debt. Any debt forgiven must be reported to the IRS as income.

Question: How long is the process of debt settlement?

Answer: Debt settlement takes about 24 to 60 months to complete and there are no guarantee of success. Due to long period of payment plan many are dropping out of the plan. They cannot afford to pay any longer and the promised saving has no guarantee of success in the end.

Question: What are the fees of debt settlement?

Answer: Debt settlement companies’ charges vary. Some charge a flat fee of $5000 or more. Others charge about 15% to 18% of the total debt. On the other hand some charge about 25% of the savings. In the final analysis, sometimes it becomes more expensive than paying the creditors directly because of the fees paid to the debt settlement companies plus the monthly deposit to escrow to cover any settlement.

Question: Can you file bankruptcy while in the process of debt settlement?

Answer: If you are in debt settlement you can still file bankruptcy. Bankruptcy can cancel any contract you made on debt settlement without any problem. Filing bankruptcy could take between three to six months to process. Once the case is filed, no creditors will make a collection call or file a case in court because you are protected by the automatic stay of the court.

Question: What are the advantages of filing bankruptcy than entering into debt settlement?

Answer: Attorney’s fees are cheaper than fees for debt settlement. If you file bankruptcy, there will be no more lawsuits on your unsecured debts, no more garnishment, no long period of negotiation and no reporting of income to the IRS. After bankruptcy you can start fresh and begin building your credit. In debt settlement, you cannot build your credit until all debts are settled which may take years.

Note: This is not a legal advice.
Immigration News

1. On December 23, 2010, we received an approval from the Immigration Court for a waiver of misrepresentation for an alien who entered as single but actually married.

2. The death of U.S. citizen parent will not be a hindrance to apply for a waiver of misrepresentation.

3. On January 5, 2010, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.

4. Petitioner’s death is not a problem if the beneficiary is in the U.S. when the petitioner died and at the time of adjustment of status.

5. Abused spouse of U.S. citizen or permanent residents can self petition even if there is a problem with the entry documents such as C or D visa or entry without inspection or assumed name.

6. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened.

Bankruptcy News

1. Chapter 7 will eliminate all unsecured debts. If you are near retirement age, you must eliminate most of your debts.

2. Bankruptcy will stop foreclosure actions. If your trustee sale date is 10 days before, you can still file for bankruptcy.

3. If your salary is being garnished, you have a court case about debts or you are being harassed by creditors, bankruptcy can stop garnishment, court cases, harassing creditors and eliminate the debt.

4. Bankruptcy is cheaper, faster and safer than debt settlement which has no guaranteed success.

5. Preserve your health, eliminate stress and live a happy life by eliminating your debts which is the root of all problems.

Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration and bankruptcy law. He earned his Juris Doctor at Western State University College of Law in Fullerton, California. He is also a Certified Public Accountant and a Bachelor of Business Administration Cum Laude graduate. He has four offices which are located in Hayward, San Jose, Fresno and Bellflower, California. You can contact him at telephone number 1-877-456-9266.

How Hard Can Becoming a Citizen Be?

By Atty. Beverly Byrd

Question: Hello Attorney Byrd. I filed for naturalization two months ago, and am awaiting my interview. I think I may have a few issues and hope you can let me know. I had two DUI’s about 7 years ago, and then unfortunately was convicted of another DUI two years ago. I took AA classes, and do not drink anymore, and have definitely learned my lesson where alcohol and driving is concerned. Will these convictions be problems for me? Thank you for answering my question. Gregorio

Answer: Hello Gregorio. Thank you for your question. A requirement for naturalization is good moral character. USCIS has recently become tougher on DUI convictions. If there are old DUI convictions, such as outside the 5 years immediately preceding the filing of the naturalization application, and then there is another DUI conviction within the five years immediately preceding the filing , USCIS has recently taken the position that the alcohol problem likely continued in the gap between convictions. Moreover, they believe that the problem may still be continuing. It is very important that you present sufficient evidence to show that you have been rehabilitated, or have changed your behavior and no longer abuse alcohol. You should perhaps seek the services of a competent immigration attorney who handles naturalization cases where convictions are involved. Good luck.

Question: Hello Attorney Byrd. I read your column every week. Thank you for your advice to Filipinos. My grandmother filed for naturalization and now has an interview coming up. She unfortunately had three petty theft convictions in her past. We have tried to help her, and she has seen a therapist. I was told that a petty theft conviction doesn’t really matter to USCIS. Is this true? Aida

Answer: Hello Aida. Thank you for your question. As a general rule of thumb, USCIS always cares about convictions in the naturalization context as that is a direct reflection on one’s moral character. The question is how much the conviction affects your grandmother’s case. Here, it has a serious effect. Your grandmother is actually deportable under the ground that she has been convicted of more than one crime involving moral turpitude at any time after her admission to the U.S. Her case should have been carefully analyzed before she filed to determine if she had good chances of success with her application, as well as if she was willing to risk being placed in deportation proceedings.

As her application has already been filed, she should prepare as much evidence of her rehabilitation as possible. USCIS can now either naturalize your grandmother, or can place her in deportation proceedings. I highly suggest that your grandmother hire a competent immigration attorney to help prepare her rehabilitation evidence and be with her in the interview. What she does at this point can seriously affect her future. Good luck.

Question: Hi Attorney Byrd. Thank you for helping so many in our community. My sister wants to file for U.S. citizenship. She has been a permanent resident for 8 years. We want to make sure if she will have problems since she has spent some time outside the U.S. in the last five years trying to start a business in the Philippines. Her longest trip length was about 7 ½ months. God Bless, Precy.

Answer: Hello Precy. Thank you for such a good question. When applying for naturalization, commonly called U.S. citizenship by many people, one’s trip history in the last five years immediately preceding the filing becomes very important. One of the requirements of naturalization is that one has resided continuously in the United States in the five years immediately preceding the filing of the application. To determine if the person has been continuously residing in the U.S., USCIS looks at the trip history during this statutory period. If one trip lasted more than 6 months, USCIS presumes that the applicant has not been continuously residing in the U.S. This can lead to a denial of the application.
This presumption, however, can be rebutted. The applicant should offer evidence that they were continuously residing in the U.S., i.e., that they had significant ties in the U.S. during this time, and no significant ties abroad during this time. Your sister should consult with a competent immigration attorney to analyze her trip history to determine if she is at risk for denial, and what type of evidence she can offer in support of her case. Good luck.

Attorney Byrd has been practicing immigration law exclusively for over 10 years and has helped thousands in the Filipino community with their immigration issues. To schedule a confidential consultation, contact Attorney Byrd through e-mail at info@byrdassociates.com, or at one of her Bay Area offices below.

San Jose Office
95 S. Market Street, Suite 300
San Jose, CA 95113
(408) 995-3268

San Francisco Office
One Embarcadero Center, Suite 500
San Francisco, CA 94104
(415) 362-2285

Visa Bulletin for February of 2011

By Monica Ganjoo

Question: What is the Visa Bulletin?

Answer: The Visa Bulletin provides us the priority dates for Family Petitions. For example, if you are a United States citizen and you have filed for a green card for your brother, it usually takes 23 years (11 for other countries; 23 for Filipinos) for your brother to be able to come to the United States with a green card. The Visa Bulletin shows you what date the Citizenship and Immigration Service (formerly known as Immigration and Naturalization Service) is working on. If you filed on April 10, 1993, you have to look at the 4th category of the Visa Bulletin for Philippines, and you will see that CIS is currently working on January 15, 1988. There is a five year difference between these numbers, which means that the estimated time that your brother will be able to come to the United States with a green card through your petition is more or less five years.

Question: What is the First preference category?

Answer: The First preference category applies to children over the age of 21 of United States citizens. These children must be single. For Filipinos, the priority date for the month of February is August 1, 1994.

Question: What is the Second (A) preference category?

Answer: This category belongs to spouses and unmarried, single children under the age of 21 of Legal Permanent Residents. For Filipinos, the priority date for the month of February is January 1, 2008.

Question: What is the Second (B) preference category?

Answer: This category belongs to children of Legal Permanent Residents that are over 21, but are still single. For Filipinos, the priority date for the month of February is June 1, 1999.

Question: What is the Third preference category?

Answer: This category belongs to married children of United States citizens. If a child of a United States citizen is under 21 but is married, they will fall under this category. For Filipinos, the priority date for the month of February is October 22, 1991.

Question: What is the Fourth preference category?

Answer: This category belongs to brothers and sisters of United States citizens. These beneficiaries will be able to bring their spouses and all unmarried children under the age of 21 with them. For Filipinos, the priority date for the month of February is January 15, 1988.

Question: What if I am a Legal Permanent Resident, and I filed a family petition for my daughter two years ago when she was 23, and she just got married?

Answer: When you filed for your daughter, you filed for her under the Second (B) preference category. If you are still a Legal Permanent Resident at the time your daughter got married, your petition for her will be cancelled. However, if you became a United States citizen before your daughter got married, then your petition for her is still valid, but the preference category will be changed from Second (B) to Third.

Question: What if I filed for my son under the Second (B) category, and then I became a United States citizen? Is it true that it will take my son five years longer to come to the United States only because I became a United States citizen?

Answer: In the past, this was true. However, under Section 6 of the Child Status Protection Act, you can choose to keep your old priority date. You will have to send a letter to the National Visa Center as well as one to the United States Embassy in Manila stating that you wish to keep your old priority dates. Please take note that both petitioner and beneficiary will have to write these letters and the letters must be notarized.

Question: What if I am a United States citizen and I filed for my sister when she was single, and now she is married?

Answer: Your sister will be able to come to the United States with her husband, and any child that they will have (as long as the child is single and is under the age of 21 at the time of emigration).

Question: Can I file for my parents if I am a Legal Permanent Resident? What about my siblings?

Answer: No. If you are a Legal Permanent Resident, you may only apply for spouses and single children. You may not apply for your parents, married children, or siblings.

Question: What is the priority date for a United States citizen filing for parents?

Answer: There is no priority date for spouses, parents, and single children under the age of 21 of United States citizens. This means that it should take less than a year for these individuals to immigrate to the United States (some cases take longer for various issues).
For more information, call Attorney Monica Ganjoo for a consultation.

Ganjoo Law Offices currently offer a consultation with Attorney Monica Ganjoo for only $25. The Staff of Ganjoo Law Offices speak a total of six different languages. For a $25 consultation with Monica Ganjoo, call one of her offices below:

870 Market Street, Suite 340
San Francisco, CA 94102
(415) 495-3710

111 W. Saint John Street, Suite 513
San Jose, CA 95113
(408) 975-0500

How Can I Keep My House if I File Chapter 7 Bankruptcy?

By Crispin Lozano

Question: I have been denied for a loan modification. My house has no equity but I want to keep it although I am three months behind on my mortgage payments. Can I keep my house if I file for Chapter 7 Bankruptcy?

Answer: You can keep your house even if you file for Chapter 7 Bankruptcy. When you file for bankruptcy you will be required to submit a Statement of Intention on what you want to do with your secured properties like your home and your car. You can state that the debt on your house will be reaffirmed. This means that you will honor the original terms of the mortgage on your house and you will pay the required monthly payments continuously even if you already filed bankruptcy. While your case is in Bankruptcy court you may negotiate with your lender for a loan modification, or a loan work out. Your late payments can be added to the principal if the lender agrees. It is more likely that the lender will give you a better loan terms because of your changed situation. There are lenders that grant loan modification after Chapter 7 Bankruptcy discharge. Since in Chapter 7 you can eliminate most of your unsecured debts like credit cards, medical bills, department store bills etc. the lender is more likely to give you a loan workout because they know that your paying capacity has improved with the elimination of your unsecured debts.

Question: Is Chapter 13 Bankruptcy the better alternative than Chapter 7 if I want to keep my house?

Answer: Chapter 13 is a payment plan bankruptcy and applies only to those individuals with regular income. Under Chapter 13 you will need to pay your current monthly mortgage plus the unpaid mortgage overdue account plus a portion of all unsecured debts. From your monthly payments the Bankruptcy trustee will add a commission of ten percent. Statistically about ninety percent of those who filed Chapter 13 ended up converting to Chapter 7 because they cannot afford the monthly payments. Although in Chapter 13, you can strip the lien on a second mortgage, it does not mean that you do not have to pay it. It only means that the second mortgage will become an unsecured debt which you will have to pay partially under your payment plan. In the final analysis Chapter 13 is more expensive and the chance of your discharge in three years is slim because either those who filed Chapter 13 either withdraw from the plan or convert to Chapter 7 later because they are paying more than they anticipated before.
Note: This is not a legal advice.

Immigration News
1. On December 23, 2010, we received an approval from the Immigration Court for a waiver of misrepresentation for an alien who entered as single but actually married.

2. The death of U.S. citizen parent will not be a hindrance to apply for a waiver of misrepresentation.

3. On January 5, 2010, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.

4. Petitioner’s death is not a problem if the beneficiary is in the U.S. when the petitioner died and at the time of adjustment of status.

5. Abused spouse of U.S. citizen or permanent residents can self petition even if there is a problem with the entry documents such as C or D visa or entry without inspection or assumed name.

6. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened.

Bankruptcy News
1. Chapter 7 will eliminate all unsecured debts. If you are near retirement age, you must eliminate most of your debts.

2. Bankruptcy will stop foreclosure actions. If your trustee sale date is 10 days before, you can still file for bankruptcy.

3. If your salary is being garnished, you have a court case about debts or you are being harassed by creditors, bankruptcy can stop garnishment, court cases, harassing creditors and eliminate the debt.

4. Bankruptcy is cheaper, faster and safer than debt settlement which has no guaranteed success.

5. Preserve your health, eliminate stress and live a happy life by eliminating your debts which is the root of all problems.

Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration and bankruptcy law. He earned his Juris Doctor at Western State University College of Law in Fullerton, California. He is also a Certified Public Accountant and a Bachelor of Business Administration Cum Laude graduate. He has four offices which are located in Hayward, San Jose, Fresno and Bellflower, California. You can contact him at telephone number 1-877-456-9266.

Oh no, my filings were sent back!

By Beverly Byrd

Question: Hello Attorney Byrd. I sponsored my wife for a green card at the beginning of January 2011, and paid all of the filing fees separately. A friend told me that the work permit fee is included in the green card fee as of the time the filing fees increased last November 2010. Is this true? Will USCIS return my wife’s filings? Thank you for your advice and help to our community. Pablo

Answer: Hello Pablo. Thank you for your question. Yes, if you filed for a green card for your wife, her work permit application, or Form I-765, and even a travel permit application, Form I-131, are included in the green card, or Form I-485 fee. You need only one check for all of these applications. The filing fee for all of these applications together is $1,070, which includes an $85 biometric fee. You would have also paid the Form I-130 petition fee of $420. If you sent the filing fees in separate checks, USCIS will still accept the applications, and will return your unnecessary checks. However, if you sent the filing fees in one check for a larger amount than is required, USCIS will return all applications and the petition to you. USCIS does try to decrease the delay caused by incorrect filing fees by sending a cover sheet to return your filing with the correct fees. This cover sheet allows USCIS to accept the filings the day they arrive and immediately send the receipts back to you. The receipts arrive back to you in approximately one week. Your delay, if any, should be minimal.

Question: Hello Attorney Byrd. I read your column every week and find your advice to Filipinos very useful. My neighbor has already seen you in your office and said you were of a great help to him. I hope you can help me too. My wife sponsored me for a green card about two years ago, and I received a conditional green card which expired about one week ago. My wife and I filed to remove the condition, but received the filing back in the mail yesterday because we filed the wrong form! We filed Form I-90 instead of Form I-751. Now my green card has expired. What shall I do now? Thank you for all your advice Attorney Byrd. God Bless, Norman.

Answer: Hello Norman. Thank you for your question. I see clients in the office periodically who have made this mistake. Form I-90 is a form for permanent residents who need to renew an unconditional card. If the card expires, they are still permanent residents. On the other hand, Form I-751 is for conditional permanent residents who have a two year conditional green card obtained through marriage to a U.S. citizen. If this card expires, the permanent residence has also expired if no petition to remove the conditional status has been filed and accepted by USCIS.
This is not a fatal mistake. You can still file Form I-751 with your wife, and explain to USCIS why you are filing late. USCIS routinely accepts late filings for good reason, and will extend your conditional permanent residency until they make a decision in your case. Remember, if you do not file Form I-751, USCIS will formally terminate your permanent residency and place you in deportation proceedings. If you feel unsure about filing again, you should consult with a competent immigration attorney who can help you.

Attorney Byrd has been practicing immigration law exclusively for over 10 years and has helped thousands in the Filipino community with their immigration issues. To schedule a confidential consultation, contact Attorney Byrd through e-mail at info@byrdassociates.com, or at one of her Bay Area offices below.

San Jose Office
95 S. Market Street, Suite 300
San Jose, CA 95113
(408) 995-3268

San Francisco Office
One Embarcadero Center, Suite 500
San Francisco, CA 94104
(415) 362-2285

Abandonment of Permanent Resident Status

By Monica Ganjoo

Question: If a legal permanent resident has remained out of the United States for more than six months but less than one year, does it mean that he/she has abandoned his/her green card?

Answer: Not necessarily. You can present your green card at the port of entry after a temporary absence abroad that does not exceed one year. However, if a legal permanent resident stays out of the United States for over one year, he/she may not use that green card to enter the United States with.

Question: If the legal permanent resident has been out of the United States more than a year, and he cannot use his green card at the port of entry to enter the United States, does it mean that he is no longer a legal permanent resident?

Answer: Not necessarily. There is a difference between the validity of a green card as a travel document and the continued viability of the legal permanent resident’s claim to resident status. Whether someone has abandoned his legal permanent resident depends on “intent” rather than the amount of time he has spent outside of the United States.

Question: What is the meaning of “temporary visit abroad”?

Answer: California is governed by the Ninth Circuit. The Ninth Circuit Court of Appeal’s interpretation is: A trip is “temporary visit abroad” if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time – if as in (b) the length of visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit (Singh v. Reno, 113 F.3d 1512).

Question: What are the main factors that determine if someone has abandoned his legal permanent resident status or not?

Answer: The main thing to look at is the person’s “intent.” The factors that determine “intent” are: family ties in the United States, property holdings, jobs in the United States, duration of residence in the United States, and the person’s family ties, property, and business ties in the foreign country that he was visiting.

Question: If a legal permanent resident has been outside of the United States for less than a year, it is possible that she can still be found to have abandoned her legal permanent residence status?

Answer: Yes, even though her green card is still valid at the port of entry, the Border Patrol Officer can still find that she has abandoned her legal permanent resident status. The Officer may find that if she does not have strong ties in the United States (such as family, residence, employment, etc.), then she does not necessarily need a green card. It may be better for this person to obtain a visa at the United States Consulate abroad if they just want to “visit” the United States.

Question: If a Re-entry Permit is obtained, can a legal permanent resident remain out of the United States for a long period of time?

Answer: Possibly. One must understand that having a Re-entry Permit does not prevent a Border Patrol Officer from finding that the person has abandoned his legal permanent resident status. Having this permit only prevents the officer from relying solely on the duration of the person’s absence to determine abandonment. The officer may still investigate the absence, not as a reflection of the person’s intent, but to find out if the activities outside of the United States could make the person inadmissible.

Question: How does a person obtain a Re-entry Permit?

Answer: The Department of Homeland Security issues Re-entry Permits. The legal permanent resident will have to report to have his fingerprints taken. However, after the completion of the fingerprints, he may leave the United States before the approval of the Re-entry Permit.

Question: If a legal permanent resident did not obtain a Re-entry Permit, and stayed out of the United States for more than a year, is it too late?

Answer: Not necessarily. This person can apply for a Special Immigrant Visa
(SB-1) at a United States Consulate. Under 22 CFR Section 42.22, a legal permanent resident shall be classifiable as a special immigrant under INA (a)(27)(A) if the consular officer is satisfied that: (1) The alien had the status of an alien lawfully admitted for permanent residence at the time of departure from the United States; (2) The alien departed from the United States with the intention of returning and has not abandoned that intention; and (3) The alien is returning to the United States form a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond the alien’s control and for which the alien was not responsible. Further, the person must prove that he/she had a definite reason for traveling abroad temporarily, that the visit abroad had a termination date that was relatively short, and that the person had a home and a job in the United States.

For more information, call Attorney Monica Ganjoo for a consultation.
Ganjoo Law Offices currently offer a consultation with Attorney Monica Ganjoo in San Francisco or San Jose for $25. The Staff of Ganjoo Law Offices speak a total of six different languages. For a $25 consultation with Monica Ganjoo, call one of her offices below:

870 Market Street, Suite 340
San Francisco, CA 94102
(415) 495-3710

111 W. St. John Street, Suite 513
San Jose, CA 95113
(408) 975-0500

What Can Be Stopped by Filing Bankruptcy?

By Crispin Lozano

Question: What can be stopped by filing bankruptcy?

Answer: Immediately upon filing of bankruptcy the court will send a mail to your creditors that a bankruptcy has been filed and no collection efforts can be made without the court approval until you are discharged. This will include the following:

1. Foreclosure action. Your lender cannot foreclose your house until the court lifts the automatic stay. If you file Chapter 7 you can keep your house if you will reaffirm the mortgage. In Chapter 13, you can keep your house if you keep paying your debts and mortgage arrears under the payment plan and you keep paying the regular monthly payments on your house after filing bankruptcy.

2. Wage garnishments are stopped except child support payments.

3. Filing a lawsuit or proceed with existing lawsuit or collect money judgments by attorneys or creditors are stopped.

4. Car repossession is stopped.

5. All harassing calls are stopped.

Note: This is not a legal advice.

Immigration News

1. USCIS filing fees will increase by about 10% effective November 23, 2010.

2. The Ninth Circuit Court decided that the death of U.S. citizen parent will not be a hindrance to seek waiver of misrepresentation. Aliens who entered as single but actually married who have U.S. citizen parents but already deceased will benefit from this rule.

3. On March 17, 2010 we received an approval in Immigration Court of adjustment of status for a conditional residence whose status was terminated before. When a conditional residence is terminated the USCIS will refer the alien to removal proceedings.

4. On January 5, 2010, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.

5. On Dec. 7, 2009, our client Ms. E was approved for a waiver of misrepresentation in the Immigration Court. In another case, on October 29, 2009, our request for waiver of misrepresentation for entering as single but actually married for our client Mr. D in Fresno, CA was approved by the Immigration Judge.

Tip of the Week

1. Petitioner’s death is not a problem if the beneficiary is in the U.S. when the petitioner died and at the time of adjustment of status.

2. Abused spouse of U.S. citizen or permanent residents can self petition even if there is a problem with their passport and entry documents.

3. Denied I-751 application to remove condition on residence may be renewed in Immigration Court.

4. Income tax filing is required in the proposed legalization. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened. It is also needed by employers to charge to expense payment for contractual job. Our office assists clients in obtaining ITIN.

Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. He earned his Juris Doctor at Western State University College of Law in Fullerton, California. He is also a CPA and a Bachelor of Business Administration Cum Laude graduate. His offices are located at 1290 B Street, Suite 203, Hayward, California 94541; at 17057 Bellflower Blvd. Suite 205, Bellflower CA 90706 and at 777 N. First St., Suite 333, San Jose, CA 95112. You can contact him at telephone number (510) 538-7188.

Abandonment of Permanent Resident Status

By Monica Ganjoo

Question: If a legal permanent resident has remained out of the United States for more than six months but less than one year, does it mean that he/she has abandoned his/her green card?
Answer: Not necessarily. You can present your green card at the port of entry after a temporary absence abroad that does not exceed one year. However, if a legal permanent resident stays out of the United States for over one year, he/she may not use that green card to enter the United States with.

Question: If the legal permanent resident has been out of the United States more than a year, and he cannot use his green card at the port of entry to enter the United States, does it mean that he is no longer a legal permanent resident?

Answer: Not necessarily. There is a difference between the validity of a green card as a travel document and the continued viability of the legal permanent resident’s claim to resident status. Whether someone has abandoned his legal permanent resident depends on “intent” rather than the amount of time he has spent outside of the United States.

Question: What is the meaning of “temporary visit abroad”?

Answer: California is governed by the Ninth Circuit. The Ninth Circuit Court of Appeal’s interpretation is: A trip is “temporary visit abroad” if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time – if as in (b) the length of visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit (Singh v. Reno, 113 F.3d 1512).

Question: What are the main factors that determine if someone has abandoned his legal permanent resident status or not?

Answer: The main thing to look at is the person’s “intent.” The factors that determine “intent” are: family ties in the United States, property holdings, jobs in the United States, duration of residence in the United States, and the person’s family ties, property, and business ties in the foreign country that he was visiting.

Question: If a legal permanent resident has been outside of the United States for less than a year, it is possible that she can still be found to have abandoned her legal permanent residence status?

Answer: Yes, even though her green card is still valid at the port of entry, the Border Patrol Officer can still find that she has abandoned her legal permanent resident status. The Officer may find that if she does not have strong ties in the United States (such as family, residence, employment, etc.), then she does not necessarily need a green card. It may be better for this person to obtain a visa at the United States Consulate abroad if they just want to “visit” the United States.

Question: If a Re-entry Permit is obtained, can a legal permanent resident remain out of the United States for a long period of time?

Answer: Possibly. One must understand that having a Re-entry Permit does not prevent a Border Patrol Officer from finding that the person has abandoned his legal permanent resident status. Having this permit only prevents the officer from relying solely on the duration of the person’s absence to determine abandonment. The officer may still investigate the absence, not as a reflection of the person’s intent, but to find out if the activities outside of the United States could make the person inadmissible.

Question: How does a person obtain a Re-entry Permit?

Answer: The Department of Homeland Security issues Re-entry Permits. The legal permanent resident will have to report to have his fingerprints taken. However, after the completion of the fingerprints, he may leave the United States before the approval of the Re-entry Permit.

Question: If a legal permanent resident did not obtain a Re-entry Permit, and stayed out of the United States for more than a year, is it too late?

Answer: Not necessarily. This person can apply for a Special Immigrant Visa (SB-1) at a United States Consulate. Under 22 CFR Section 42.22, a legal permanent resident shall be classifiable as a special immigrant under INA (a)(27)(A) if the consular officer is satisfied that: (1) The alien had the status of an alien lawfully admitted for permanent residence at the time of departure from the United States; (2) The alien departed from the United States with the intention of returning and has not abandoned that intention; and (3) The alien is returning to the United States form a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond the alien’s control and for which the alien was not responsible. Further, the person must prove that he/she had a definite reason for traveling abroad temporarily, that the visit abroad had a termination date that was relatively short, and that the person had a home and a job in the United States.

For more information, call Attorney Monica Ganjoo for a consultation.
Ganjoo Law Offices currently offer a consultation with Attorney Monica Ganjoo in San Francisco or San Jose for $25. The Staff of Ganjoo Law Offices speak a total of six different languages. For a $25 consultation with Monica Ganjoo, call one of her offices below:

870 Market Street, Suite 340
San Francisco, CA 94102
(415) 495-3710

111 W. St. John Street, Suite 513
San Jose, CA 95113
(408) 975-0500

May a Battered Spouse Self-Petition and Adjust Status to Permanent Resident?

By Crispin Lozano

A battered spouse of U. S. citizen or lawful permanent resident may self-petition under the Violence against Women Act and file an adjustment of status upon approval of the I-360 petition if the visa is currently available. If the spouse of the self petitioner is a lawful permanent resident she will have to wait until the I-360 petition is approved and the priority date for the second preference is current. Although the law is labeled violence against women act, a male spouse may avail of the benefit of the act.

Question: What documents are needed to prove battery or extreme cruelty?

Answer: Evidence of abuse from police, judges or other court officials, medical records, reports from doctors and psychologist, affidavits from clergy, neighbors, friends or relatives, protective orders from court and other documents showing pattern of abuse.

Question: When can a self petitioner file an application for work authorization?

Answer: A self petitioner is eligible for employment authorization upon approval of the self petition and filing of adjustment of status.

Question: What are the advantages of adjustment of status under VAWA compared to the regular adjustment of status?

Answer: VAWA adjustment of status has the following advantages:

1. VAWA self petitioner need not have been inspected or admitted into the U.S. This means that “Entered without Inspection” or “present without authorization” are eligible under VAWA.

2. Having worked without authorization is not a bar to adjustment.

3. Having overstayed a nonimmigrant visa or having violated the terms of nonimmigrant visa is not a bar to adjustment.

4. Having been admitted as a nonimmigrant under “D” [crewmember], “C” [alien in transit without a visa], or “S” [government witness] does not disqualify self petitioner from adjustment of status.

5. Having been admitted under Visa Waiver program is not a bar to adjustment.

6. Self petitioners do not have to pay the $1000 penalty if they adjust status under Sec. 245(i).

Note: This is not a legal advice.

Immigration News

1. On December 23, 2010, we received an approval from the Immigration Court for a waiver of misrepresentation for an alien who entered as single but actually married.
2. The death of U.S. citizen parent will not be a hindrance to apply for a waiver of misrepresentation.

3. On January 5, 2010, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.

4. Petitioner’s death is not a problem if the beneficiary is in the U.S. when the petitioner died and at the time of adjustment of status.

5. Abused spouse of U.S. citizen or permanent residents can self petition even if there is a problem with the entry documents such as C or D visa or entry without inspection or assumed name.

6. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened.

Bankruptcy News
1. Chapter 7 will eliminate all unsecured debts. If you are near retirement age, you must eliminate most of your debts.

2. Bankruptcy will stop foreclosure actions. If your trustee sale date is 10 days before, you can still file for bankruptcy.

3. If your salary is being garnished, you have a court case about debts or you are being harassed by creditors, bankruptcy can stop garnishment, court cases, harassing creditors and eliminate the debt.

4. Preserve your health, eliminate stress and live a happy life by eliminating your debts.
Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. He earned his Juris Doctor at Western State University College of Law in Fullerton, California. He is also a Certified Public Accountant and a Bachelor of Business Administration Cum Laude graduate. He has offices are located in Hayward, San Jose, Fresno and Bellflower, California. You can contact him at telephone number 1-877-456-9266.