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Thousands of U.S. citizens serving active duty in the Armed Forces have spouses, children or parents who are undocumented. The USCIS and the Department of Defense recognized that their family’s immigration status may result in stress and anxiety  either in active service or as veterans.

In response, Congress, the Secretary of Homeland Security, and the Department of Defense identified tools that would help military dependents secure permanent immigration status as soon as possible.  This included granting parole to certain family members which would allow them to adjust their status within the United States without being subject to a ban – resulting in prolonged periods of family separation.

As such, INA § 212(d)(5)(A) grants the Secretary discretion to parole for “urgent humanitarian reasons or significant public benefit” an otherwise undocumented and inadmissible spouse, parent, or child under 21, who wishes to apply for lawful status to the United States.  This is known as Parole in Place.  Stated simply, undocumented spouses, parents, and children of U.S. citizens who are actively serving may be granted parole – thus effectively changing their status from “unlawful” to “lawful.”

If a spouse, parent, or child of a military-serving U.S. citizen is granted parole, the U.S. citizen can then file a petition to sponsor the dependent for a green card as immediate relatives.  Parole only applies to the dependent’s unlawful status in the United States.  It does not negate any other grounds of inadmissibility, such as criminal convictions or medical conditions.

If you are the spouse, parent or child of a U.S. citizen active military service member, contact the immigration law firm of Maximilian Law Inc. to see if you are eligible for Parole in Place.

Almost a year has passed since June 26, 2015, when the United States Supreme Court ruled in Obergefell v. Hodges that the fundamental right to marriage is constitutionally guaranteed to same sex couples. At the time, Justice Anthony Kennedy wrote that gay couples have “the fundamental right to marry.” This is an especially momentous occasion when you consider that Congress only removed homosexuality as a ground of inadmissibility (ineligibility for a visa or admission to the United States) from the Immigration and Nationality Act by passing the Immigration Act in 1990. People with HIV were banned from entering the country until 2010.

The Obergefell decision extended the 2013 U.S. v. Windsor holding, which struck down the part of the Defense of Marriage Act forbidding the federal government from recognizing same sex marriage as an unconstitutional abridgment of due process and equal protection rights. The Windsor decision allowed same sex couples to qualify for immigration benefits to the same extent as heterosexual couples. Because the Immigration and Nationality Act did not define a spouse as either a husband or a wife, the law required no further amendments to apply to same-sex couples. Within a day of the Windsor ruling, the United States Citizenship and Immigration Services (USCIS) announced that it would start to accept same sex green card petitions. In November of that same year, Maximilian Law Inc. received its first green card approval based on same sex marriage.

When the Supreme Court ruled on Obergefell v. Hodges, all state laws banning same sex couples from marrying were struck down. Thus, where previously only same sex couples who were married in states that granted them marriage rights qualified for federal marriage benefits, now, all married same sex couples across the nation could qualify.

This was significant from an immigration law standpoint, making it much easier for foreign nationals to obtain immigration benefits through marriage. Now, homosexuals may sponsor their foreign national spouses for U.S. permanent residency. Foreign spouses inside of the United States can apply for permanent residency through adjustment of status; Foreign spouses outside of the United States can apply via consular processing. After approval, the foreign spouse becomes a conditional U.S. resident and receives a green card which is valid for up to two years from the date it is issued. Conditional residency becomes permanent residency once both parties act to jointly remove the conditions on the residency 90 days prior to the second anniversary of receiving the conditional residency. The foreign spouse may be able to bring his or her unmarried children under 21 as well under a K-2 visa.

Citizens may also sponsor a foreign same sex fiancé under a K-1 visa. The petitioning U.S. citizen must first file a K-1 application. Once that application is approved, the fiancé will then apply for the K-1 Visa at the U.S. consulate abroad. Upon receiving the visa, the fiancé can enter the United States and must marry the citizen within 90 days. The foreign fiancé may also bring his or her unmarried children under 21 using a K-2 visa.

Every month, thousands of beneficiaries of an approved I-130 or I-140 petition go to the Visa Bulletin at https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html to see if their priority date is current that month. Prior to 2016, the process was pretty straightforward:

1) Check the priority date as stated on your approved I-130 or I-140

2) Check your preference category against your country of chargeability

3) If your priority date is after the date listed, then your priority date is current and you can either adjust your status or start with NVC processing

Example: John was born in Australia and his mother filed an I-130 petition which was approved. His priority date is June 1, 2005. Under the F3 family preference category for non-chargeability citizens, the priority date was December 1, 2004. His priority date is current and he can apply for his green card.

The Visa Bulletin now has two charts for both family and employment-based cases: A) Application Final Action Dates for Family-Sponsored Preference Cases; and B) Dates for Filing Family-Sponsored Visa Applications.

So which chart do beneficiaries use to determine whether their priority date is current? The answer is that it depends on whether you are in the United States and eligible to adjust your status, or whether you intend to process your application through the National Visa Center and U.S. Consulate.

If you are processing through NVC, you always rely on Chart B (“Dates for Filing”). If you are adjusting your status, you have to go to USCIS (www.uscis.gov/visabulletininfo) to determine which chart it will be using that month.

Example: John looks at the Visa Bulletin and it shows that the priority date for his category under Chart A is December 1, 2004. However, Chart B shows a priority date of August 1, 2005. Thus, he can apply for his green card through the consulate right away. However, if he wants to adjust his status, he will have to check USCIS’s website to see if it is using Chart A or Chart B for this month. Upon checking, he learns that USCIS is using Chart A for that month. Thus, his priority date is not current for adjustment of status purposes.

Maximilian Law Inc. is an immigration law firm experienced with family and employment-based green card applications.

The Ninth Circuit Court of Appeals recently ruled that the courts do not have the ability to help a naturalized citizen change her birthdate listed on her certificate of naturalization.

In 1965, Yu-Ling Teng first came to the United States on a student visa. At this point, she held a Taiwanese passport that said she was born on August 9, 1939. The Social Security Administration (SSA) issued Teng a Social Security card which stated this 1939 birth year.

Teng later applied for a green card in 1974. The signed application given to Immigration and Naturalization Service (INS) included a declaration from her aunt that incorrectly stated that Teng was born on August 9, 1944. Based on the application and its accompanying documents, INS issued Teng a green card listing her birthdate as August 9, 1944. When Teng became a U.S. citizen in 2001, she received a naturalization certificate from INS that stated her birth year as 1944.

The problems started for Yu-Ling Teng in 2004, when she attempted to renew her California driver’s license. She was denied due to the different birth years on file with the SSA and the United States Citizenship and Immigration Services (USCIS). Teng attempted to fix the problem by filing a request for a replacement naturalization certificate from USCIS. Three years later, a USCIS officer met with Teng and informed her that under agency regulations, he had no authority to change the birth date because she had signed off on the document stating her birth year as 1944. Teng turned to the SSA in an attempt to change the birthdate on file as well, with no success.

After five years of working with USCIS, the SSA, and the California Department of Motor Vehicles, Teng was able to obtain a temporary driver’s license. However, the license was not a verified identification, did not allow her to establish eligibility for voter registration, public benefits, or employment, and expired less than two months after it was issued.

Finally, a representative from Teng’s local assemblywoman’s office advised her to file a petition in federal court against the Department of Homeland Security. The district court dismissed Teng’s petition after concluding that it had not been given the subject matter jurisdiction to amend a naturalization certificate issued by an agency (defined as the authority of the court to hear cases of a particular type). Teng then appealed to the Ninth Circuit Court.

The Ninth Circuit, though sympathetic to Teng’s tenuous situation, agreed with the district court. Though courts initially had the exclusive jurisdiction to naturalize immigrants before 1991, the Immigration Act of 1990 transferred this authority to the Attorney General in the executive branch under the President. Thus, the Attorney General of the United States has the sole ability to change and update naturalization certificates.

This case illustrates the importance of having documents that have the correct information on them. If Yu-Ling Teng had caught the misstatement of her birth year in the declaration from her aunt submitted with her application for a green card and changed it before signing it, she could have avoided over a decade of trouble. This is exactly the situation an immigration attorney could have helped her avoid.

As Maximilian Law Inc’s website states, “When it comes to immigration law, the devil is in the details.” Contact Maximilian Law Inc to get help with your immigration into the United States today.

As we head into summer, Brazil should be giddy with anticipation about the Rio Olympics.  However, the spiraling economy, violence, and Zika outbreak has instead caused many around the world to think twice about traveling to Brazil.  It has also caused many Brazilians to consider their options on moving to another country, including the United States.  Like citizens of many countries, Brazilians have several options on moving to the United States:

• Marriage-Based Green Cards:  If you are married to a U.S. Citizen, your spouse can sponsor you for a Green Card
• K-1 Fiancé Visa:  If you are engaged to a U.S. Citizen, your fiancé can sponsor you for a K-1 visa that would allow you to travel to the United States to get married and apply for a green card
• Family-Based Green Cards:  If you have a U.S. Citizen sibling, parent or child, you can be sponsored for a green card
• LGBT & Same Sex Marriage Green Cards:  U.S. citizens in LGBT or same sex marriages can sponsor their foreign spouses for green cards or a K-1 visa
• Investor EB-5 Green Card:  If you invest $500,000 or $1 million into a U.S. Business, you could qualify for an EB-5 green card
• Work Visas:  There are several work visa categories available, including the H-1B, O-1, or L-1 visa
• School:  If you are accepted into a U.S. School, you may be able to get an F-1 student visa

If you are a citizen of Brazil looking to immigrate to the United States, the immigration law firm of Maximilian Law Inc. can evaluate your options.