The Religious Worker Path to a Green Card

If you work for a recognized religious organization, either as a minister or a religious worker, you might qualify for a green card as a special immigrant. You can apply for your green card as a minister or religious worker from inside the U.S.—if you are in lawful status and not working without authorization—or from abroad. You start the process by filing an I-360 petition on your own or through your employer. Whether you or your employer files the petition, the prospective U.S. employer must submit certain documentary evidence, including an attestation showing that certain requirements have been met regarding the organization, its history of filing this type of petition and the position and salary.

Now, the immigration regulations define a “minister” as someone who is fully authorized by a religious denomination to conduct religious activities, such as a minister, priest, rabbi, imam, ordained deacon, or Buddhist monk. A “religious worker” is defined as someone who is in a religious vocation or occupation and is authorized to perform normal religious duties, such as religious instructors, religious counselors, missionaries, religious broadcasters, workers in religious hospitals and cantors. Purely non-religious workers and volunteers are not included in this definition. Over the years the regulations defining religious occupations have changed and there has been litigation over varying interpretations. Someone attempting to immigrate under this category would be well advised to consult with an immigration attorney about their specific circumstances.

To qualify for a green card as a minister or religious worker, for at least 2 years immediately before filing the visa petition, you must have been a member of a religious denomination that has a bona fide, nonprofit, religious organization in the U.S.

Also, you must be seeking to come to the U.S. to work full time (35 hours) in a paid position, purely to carry on your vocation as a minister or to work for a bona fide, nonprofit religious organization in the U.S. or its affiliate in the U.S.

Finally, you must have been working as a minister or religious worker—abroad or lawfully in the U.S.—for at least 2 years immediately prior to filing the visa petition. (There can be breaks in the 2-year period but only in certain situations. And, unauthorized employment during the 2-year period stops the 2-years from accruing but it can be restarted again.)

Because of a recent court decision, immigrants can no longer file both the visa petition for a special immigrant visa as a religious worker and the green card application at the same time. This applies specifically to the religious worker classification. Currently, any green card application (I-485) that is based on a special immigrant petition (I-360) for a special immigrant religious worker must be filed only after you have an approved I-360 petition.

In addition, currently, all religious workers (not ministers) must enter the U.S. with a valid immigrant visa or adjust to permanent resident status (have an approved I-485) before September 30, 2012. This date might be extended in the future, but this is the current law.

Seattle Immigration Lawyer | Are Immigration Benefits Available to Same-Sex Spouses?

One question that I have been asked as an immigration attorney is: what is the best way for a same-sex couple—when one person is a US citizen—to get married and live together in the US? Like the answer to many legal questions, the answer is not clear. The issue of how same-sex couples are treated under our immigration laws is currently being litigated and will probably have to be decided by the U.S. Supreme Court in the next several years. As of right now, the immigration laws in the U.S. only recognize marriage as being between a man and a woman. This is still true despite the fact that in February of this year, the Obama Administration announced that the federal law defining marriage this way (D.O.M.A.) is unconstitutional.

Therefore, with this uncertainty in mind, it would be very risky for same-sex married couples to affirmatively seek immigration benefits based on their marriage. At the same time, it might be risky for same-sex couples to get married marry if the immigration status of one of them is dependent on that person maintaining a foreign residence, i.e., in the case of a non-immigrant visa holder.

Caveats aside, theoretically, an unmarried, same-sex couple could contemplate moving to a U.S. state that recognizes and issues marriage licenses to same-sex couples (currently: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and D.C.) and then seeking adjustment of status to that of a permanent resident based on the state-recognized marriage. Of course, like any other marriage- based application, they would have to show that it was a bona fide marriage entered into not merely for immigration benefits.

However, the safest option right now would probably be to wait for the law to change before filing any immigration application based on a same-sex marriage. Same-sex partners should speak with an immigration attorney before filing any immigration application and before getting married. It might well be worth exploring other non-marriage-based visa options for traveling and living in the U.S. temporarily or permanently. And, in cases where marriage to a partner who is in a foreign country is contemplated, it is often best if the U.S. citizen partner consults with an immigration attorney first, on his or her own, without involving the foreign-based partner.

It's Good to Be an Immigration Lawyer

Last Friday was a great day. That evening, I rode the Amtrak from Portland to Seattle, heading back from the American Immigration Lawyers Association’s Northwest Conference, newly invigorated from two days of classes crammed with the latest immigration law information. AILA conferences are truly a must for immigration lawyers who need to stay up-to-date on constantly changing and complex laws, policies, and practices. I attended the family-based immigration classes, which covered a wide array of topics, such as the latest in waivers and consular processing, international adoption, asylum and cancellation of removal.

David Leopold, president of AILA, gave a rousing speech during the conference lunch on Friday that was a call to arms for immigration attorneys and anyone who believes in protecting and fighting for the rights of immigrants to lobby for real immigration reform that is about actual solutions—not merely more enforcement. There was also promising mention of the so-called “Utah Solution,” which is a compromise plan that might pave the way for positive federal reform. One of the most effective things advocates can do, David suggested, is to talk around the dinner table, and to neighbors and friends about the need for solution-based reform since so many people, voters and politicians alike, simply don’t understand how existing immigration laws work, or, more accurately, don’t work.

The conference made me proud to be part of a knowledgeable group of lawyers from both the nonprofit and for-profit sector who are truly dedicated to working together to help unite families and make it easier for immigrant entrepreneurs to help build our economy. It only reaffirmed my feeling lately that I have found my calling.

Visa Backlog Expected to Go Down For Spouses & Children!

I have heard from a reliable source in Seattle earlier this week that the State Department backlog for the Family 2A preference category--spouses and children of permanent residents--will likely be going down very soon. This is a big deal. Currently, as of the February 2011 Visa Bulletin, there is a three (3) year wait for green card holders who are applying for their spouses and children (under 21). If this changes, and the backlog starts to be cleared up, we will start seeing much faster processing times for family-based visa petitions, meaning that families will not have to wait as long as they were expecting in order to be reunited.

According to the same source, the number of visas available for the Family 2B preference category--unmarried sons and daughters (21 years of age or older)--will be increasing but processing times will not be as fast as the Family 2A. Currently, as of the February 2011 Visa Bulletin, there is a nearly eight (8) year wait for this category. Any improvement would obviously be welcomed.

So, green card holders who are waiting for their priority date to become current or who are considering applying for their loved ones to join them should watch the Visa Bulletin closely for signs of movement. The March bulletin should be published in the next several days. Here is the link to check: http://www.travel.state.gov/visa/bulletin/bulletin_1360.html

Seattle Immigration Lawyer | Forcing DHS to Act, a Brief Look at Mandamus Actions

In general, a “mandamus” is a written order issued by a court commanding a lower court or government officer to perform mandatory or purely ministerial duties correctly. In the immigration context, a person may file a mandamus petition in federal district court to force a DHS officer or other agency officer to perform a nondiscretionary duty, such as ordering USCIS to adjudicate an application or petition that has been unreasonably delayed (28 U.S.C. §1361).

In one mandamus action that was granted, the court ordered the INS to adjust a diversity lottery applicant prior to the end of the fiscal year. In another mandamus action, the court denied the USCIS’s motion to dismiss a mandamus petition that was brought to compel adjudication of an adjustment of status application, and the court rejected the government’s claim that the time that USCIS and the FBI take to complete the name check is per se reasonable. In an example of a case where mandamus was denied, one court held that a 3-year delay in an adjustment of status was not so extraordinary that it required court intervention.

In a mandamus action, the petitioner must show:

(1) a clear and certain claim;

(2) that the duty owed is ministerial and so plainly described as to be free from doubt; and,

(3) that no other adequate remedy is available.

(Belegradek v. Gonzales, 523 F.Supp.2d 1364 (N.D. Ga. 2007)).

According to the nonprofit advocacy group, the American Immigration Council,* the following tips should be considered when bringing a mandamus action:

(i) Request that the court order USCIS to adjudicate the application within a certain time frame, such as 30 or 60 days (otherwise the court may not impose any deadline!);

(ii) Request that the court maintain jurisdiction over the action after granting mandamus relief (so that, if necessary, you can return to the same court to seek enforcement of its order without having to bring a new action), or alternatively, request that the court require USCIS to provide the court with periodic progress updates; and,

(iii) If you know or suspect that security checks are causing the delay, name the FBI as well as USCIS in the petition so that the court has jurisdiction over both agencies.

If you think that your immigration application is taking too long, it is worth asking an experienced immigration attorney about the possibility of bringing a mandamus action in federal court. Sometimes your only option is to sue an agency in order to force it to do its job.

*I have paraphrased the three suggestions above from the American Immigration Council. See http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/mandamus. I have no affiliation with this nonprofit.

How a Divorce Can Hurt Your Immigration Case

Three of the most common times when a divorce can negatively impact a person’s immigration case are: (1) when someone is waiting for their green card (a.k.a. applying to adjust their status); (2) when someone is trying to change a conditional residence status to permanent residence status; and (3) when someone is waiting on their naturalization (citizenship) application.

First, if an immigrant is married to a U.S. citizen and applies for a green card, but divorces the U.S. citizen before the green card is approved, the immigrant will no longer be eligible for a green card. The only exception is when the U.S. citizen spouse was abusive.

Second, as you may know, if an immigrant obtains a green card based on a marriage to a U.S. citizen, and that marriage occurred within the last two years, the green card is conditional and expires after two years. In order to remove the condition, the immigrant and the U.S. citizen spouse must file a petition (Form I-751) within 90 days before the card expires. (The petition must be accompanied by supporting documentation showing that the marriage is not a sham. USCIS will either: approve the petition; request additional evidence; refer the case for an interview; or, deny the petition and refer it to an Immigration Judge.) The petition must be filed jointly; however, if the couple is divorced, the immigrant will file the petition him or herself and seek a waiver of the joint filing requirement, which is only granted if: (a) the marriage was entered into in good faith but was legally terminated; (b) the immigrant’s deportation would cause the immigrant extreme hardship beyond the normal hardship of someone who is deported; or, (c) the marriage was entered into in good faith but the immigrant was abused by the U.S. spouse.

If you are applying for a waiver it is highly recommended that you hire an immigration attorney since this is not a routine application but rather it requires submitting substantial documentary evidence. It is also important to note that the couple can still file the petition jointly if they are separated or their divorce is not yet finalized. But, if the couple files a joint petition and their divorce is finalized before the USCIS has rendered a decision then the petition will be denied and the immigrant will have to file a new petition with a waiver request.

Third, divorce can negatively affect an immigrant trying to naturalize based on a U.S. citizen spouse. For example, in a recent California federal district court case, the plaintiff had applied for naturalization based on his U.S. citizen wife after he had been a lawful permanent resident for three years. However, while his naturalization application was pending, the plaintiff divorced his wife. The court found that the plaintiff was not eligible for naturalization because as a result of the divorce, the 5-year residency requirement for naturalization applied instead of the 3-year residency requirement after becoming a lawful permanent resident. Alenazi v. USCIS No. 09-cv-2053 (S.D. Cal. October 12, 2010).

As you can see, the timing of a divorce can have real consequences in immigration proceedings, which are best dealt with by planning ahead and consulting with a knowledgeable immigration attorney.

Seattle Immigration Lawyer | Bribery of a Public Official is Not an Aggravated Felony Under INA

As immigration attorneys and other immigration law watchers know, the definition of “aggravated felony” under the Immigration and Nationality Act (“INA”) is ever-changing. Last month was no exception. In a decision that represented a victory for the narrow definition crowd, the Board of Immigration Officials (“BIA”) recently ruled in favor of an Austrian lawful permanent resident who was convicted of bribery of a public official under federal law, for which he was sentenced to 36 months of imprisonment. Matter of Chrysanth George Gruenangerl, 25 I&N Dec. 351 (BIA 2010).

In September, an Immigration Judge (“IJ”) had found Mr. Gruenangerl removable as an alien convicted of an aggravated felony, specifically, because his offense related to “commercial bribery” under INA Sect. 101(a)(43)(R). Mr. Gruenangerl appealed, and the BIA ruled that bribery of a public official under 18 USC Sect. 201(b)(1)(A)(2006) is not an offense “relating to” commercial bribery and thus not an aggravated felony under the INA.

By way of background, according to the indictment, Mr. Gruenangerl had promised to pay a portion of a finder’s fee to a US Forest Service employee that he expected to receive for the sale of a new gondola at a ski resort, if the employee would tell the ski resort in a report that it needed to replace its gondola.

In its analysis of the crime charged, 18 USC Sect. 201(b)(1)(A), which prohibits “[b]ribery of public officials and witnesses,” the BIA found that “the essence of the offense is the corrupt intent to influence official action.” In contrast, it held that commercial bribery “focuses on influencing action in the private sector involving the breach of the duty of fidelity.”

The BIA actually disagreed with Mr. Gruenangerl’s argument that the Fifth Circuit (where his case arose) has taken a restrictive approach to the phrase “relating to” which would require that the offense he was charged with be described in the immigration statute as a crime of commercial bribery. In fact, the BIA pointed out that both it and the Fifth Circuit had consistently held the phrase has an expansive meaning, especially when used with a general term. Nonetheless, and no doubt to the government’s chagrin, the BIA did not find the phrase “relating to” so encompassing that it includes convictions under 18 USC Sect. 201 for bribery involving public officials in order to influence official action.

Citing Perrin v. United States, 444 US 37 (1979), the BIA pointed out that Congress’s decision to use only the narrow term “commercial bribery” in the immigration statute reflected its awareness that the generic definition of “bribery” included a broad range of conduct, including violations of State commercial bribery statutes.

Disagreeing with the IJ , the BIA held that Sect. 101(a)(43)(R) is a generic provision of the Act, which requires the categorical approach since it lacks specific circumstances on how the offender committed the crime on a specific occasion. Employing such an approach, the BIA found that Mr. Gruenangerl’s crime is not an aggravated felony because the criminal statute does not facially define an offense sufficiently related to commercial bribery.

The BIA also criticized the IJ for his use of the modified categorical approach, where he considered the facts of the case and determined that the alien’s purpose in committing the offense was to obtain financial gain and therefore was commercial in nature. The BIA held that given that the essence of the criminal statute here was the intent to influence official action, the alien’s particular purpose did not somehow transform the offense into one “relating to” commercial bribery of someone in the private sector.

Of course, Mr. Gruenangerl’s battle is not over. The BIA reversed the IJ’s finding of removability (based on aggravated felony) and remanded to determine whether he is removable as an alien convicted of a crime involving moral turpitude. (In dicta, the BIA said that the crime did involve moral turpitude, but the factual issue of whether he committed the offense within five years of the date he was admitted to the U.S. remained.)