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December 2008 Archives

PRESERVING RIGHTS TO NATURALIZATION

A permanent resident can lose their permanent residence if he/she remains outside the U.S for one day more than one year. A primary residence in the U.S. is necessary to apply to Immigration for citizenship. Normally residents who need to stay outside the U.S. for more than one year must apply for a re-entry permit which permits the applicant to remain outside the U.S. for up to two years without losing permanent residence.For citizenship one needs to physically be in the U.S at least 30 months out of the previous 60. Even though the Re-entry permit permits a stay abroad for up to two years, to naturalize if you stay out of the U.S. more than one year, can only be accepted four years and one day after the foreign sojourn.If an applicant is working for the U.S. government on a research institution or a U.S. company engaged in the development of foreign trade or a U.S. public international organization, the applicant may preserve residence even if remaining abroad for one year or more by filing an immigration form to preserve residence for naturalization purposes

ADJUSTMENT OF STATUS AFTER DIVORCE

When a marriage based adjustment of status application has been filed where a divorce occurs before its approval, a recent Court of Appeals decision in the 9th Circuit decided that the application would still be effective. This case involved a K-1 visa holder who had arrived in the U.S. with K-1 status as the fiancée of a U.S. citizen. After arriving and marrying, the K-1 holder filed for permanent residence. After waiting almost 2 years for a decision by the Immigration Service the K-1 applicant divorced. Both the Immigration Court and the Board of Immigration Appeals held the applicant ineligible because the divorce occurred before the applicant received permanent residence. The Court of Appeals reversed the Immigration Service and the Board of Immigration Appeals saying that the applicant cannot be foreclosed from adjusting status because the application had been initially valid, and should not automatically become invalid because the marriage ended, the law does not require the removal of an immigrant whose marriage ends in divorce while the application for adjustment of status languishes in the agency’s file cabinet.By extension a K-1 visa holder in a similar situation but for whom a petition had not been filed should be able to substitute a new American citizen as the petitioner in a case where the original American citizen spouse failed and/or refused to file an alien relative petition.If you need help or advise, call us at 212-944-9420.Our assistance is only a phone call, or e-mail communication away

UNDOCUMENTED ALIENS & PERMANENT RESIDENCE

Immigrants who entered the U.S. with false documents such as passport or a false visa provided that they are married to a U.S. citizen, or parents of an adult U.S. citizen, now are eligible to receive permanent residence in New York.The Immigration Service requires a waiver to forgive the unlawful entry. The applicant has to prove that the U.S. citizen spouse or parent will suffer extreme hardship.If you have this type of case please call us for help.
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