Posts in category: Green Card/VISA

Attorney K. Choi, Immigration Law Specialist
Q: How do I remove conditions from a marriage-based green card?
A: To remove conditions, you can file Form I-751 with USCIS between 90 days before the two-year anniversary of the issuance of your marriage-based green card and the day it reaches two years. If you fail to file during this period, unless there is a significant reason that justifies filing late—or you file for a waiver and it’s accepted—the conditional green card will expire on the two-year mark. A “waiver” refers to filing the petition individually rather than jointly with your spouse.

Q: What is required to remove conditions?
A: You must prove the “bona fide” nature of your marriage, mainly using evidence created after the date you obtained your green card. Strong evidence includes documentation of a shared economic life (e.g., joint tax returns, bank accounts, insurance), affidavits, having a child together (if applicable), photographs, and so forth.

Q: Can I still apply to remove conditions if I get divorced?
A: Yes. Even if there was a divorce or annulment, abusive conduct by the spouse (which can include abuse of children), or a situation in which you would face extreme hardship if you lost status, or if the spouse has passed away, you can still remove conditions by obtaining a waiver, provided you prove the bona fide nature of your marriage and the relevant circumstances.

Q: How do I apply for a waiver?
A: For a waiver based on divorce or annulment, you must present evidence of both the circumstances leading to the divorce and the genuineness of the marriage. It is possible to apply for the waiver regardless of the conditional green card’s expiration date or whether the divorce is final.

In the case of “extreme cruelty,” a waiver can be granted if you already hold a conditional green card and suffer abuse from your spouse. If you have not yet received conditional resident status, you may qualify for a green card under VAWA. Notably, men can also apply for VAWA, despite the term “Violence Against Women Act.” Abusive behavior is not limited to physical violence; it can include threats such as “I will report you to immigration” or “I will divorce you,” interception of phone calls, restricting transportation, controlling you financially, insults, offensive language, or constant anger outbursts.

Meanwhile, VAWA is a separate basis for green card eligibility rather than just a waiver. Though it also requires proof of abuse by a U.S. citizen or permanent resident spouse, it entails different requirements, such as a three-year period of residence, which differ from those for marriage-based green cards. Furthermore, if there is abuse directed toward a child, the parent can file VAWA, and it is possible to apply up to two years after the marriage ends. You can also apply even before receiving a conditional green card. Even if the U.S. citizen or permanent resident spouse loses their status, or the abuse occurred prior to them obtaining citizenship or permanent residency, a VAWA petition can still be filed. Under VAWA, if you are already in removal proceedings, you may qualify for cancellation of removal, thus becoming eligible for a green card.

When seeking a waiver based on extreme hardship, you must demonstrate that if your conditions are not removed and your green card expires, leading to your departure from the U.S., you would suffer extreme hardship. This can include economic difficulties for you or your family, as well as language barriers, health concerns, child-rearing challenges, difficulty finding employment, and so forth. This waiver may be an option even if the marriage is technically ongoing rather than dissolved, so long as there are significant issues such as separation that make the marriage unsustainable.

Because a waiver request is scrutinized more carefully by USCIS—often more so than a standard marriage-based green card—approval can be more difficult. The reason is that a quickly terminated marriage often raises questions about whether the marriage was genuine. As a result, it can be more challenging to obtain approval compared to a typical marriage-based green card.

Contact: (714) 295-0700, (213) 285-0700, greencardandvisa@gmail.com, KakaoTalk ID: greencards

Criminal Records

A permanent resident petitioning for citizenship must disclose all past criminal records. This is because USCIS wants to verify that the applicant meets the requirement of “good moral character” before granting citizenship.

Typically, USCIS examines all criminal records within the five years preceding the application date (or three years if you obtained a green card through marriage to a U.S. citizen) to determine whether the applicant has any factors disqualifying them on moral grounds. However, these time frames are not absolute. Because USCIS considers every possibility during the review process, records older than five years can also impact the outcome.

It is crucial to disclose any and all crimes and suspected offenses, regardless of how long ago they occurred. If you fail to fully disclose and USCIS discovers the information later, they may deny your application for making a false statement. Even if you have already obtained citizenship, it may be revoked. Therefore, it is safer to prepare your documents thoroughly with the assistance of an attorney.

Situations Where Citizenship Application May Be Barred

Depending on the type of crime, a citizenship application can be permanently or temporarily barred.

If you commit murder or an aggravated felony, your application for citizenship will be permanently barred. This standard is firmly established by law, leaving no discretion even for USCIS to alter it. Therefore, if this applies to you, you will be unable to apply for citizenship in the future.

Although there is no single definitive list of what constitutes an aggravated felony, many types of crimes can be classified as such. You can check USCIS regulations to see which offenses are included. In some circumstances, even a minor misdemeanor can be treated as an aggravated felony. Examples of offenses considered aggravated felonies include:

• Sexual assault
• Sexual abuse of a minor
• Drug trafficking
• Fraud
• Knowingly assisting the illegal entry of a foreign national (excluding a spouse, child, or parent)
• Other offenses classified as aggravated felonies by USCIS

Other types of crimes may temporarily bar you from applying for citizenship. Typically, this bar lasts for five years; however, if you obtained your green card through marriage to a U.S. citizen, it may be three years. Examples of offenses that can result in a temporary bar include:

• Prostitution
• Drug possession
• Illegal gambling
• Fraud
• Other offenses recognized by USCIS

If you have served a total of 180 days or more of jail time, or if two or more convictions result in a combined sentence of five years or more, your citizenship application may also be temporarily barred.

Additional Details

On your application, you must disclose not only criminal records, but also any arrests, cases that were dismissed by the court, and incidents that did not result in formal arrest. These disclosures are required so USCIS can evaluate your moral character. As mentioned earlier, failing to disclose everything and allowing USCIS to discover it later may lead to a denial of your application for making a false statement, or even revocation of citizenship. You may need to prepare documents such as:

• Official statements from the court or relevant agencies
• Original or certified copies of court or agency records
• Tax documents or proof of payment obtained from the tax authority
• Any other documents requested by USCIS

Assessment of Moral Character

In evaluating an applicant’s moral character, USCIS considers not only criminal records but also additional behaviors and factors. If there are any actions that raise doubts about your moral character, even if they fall outside the crimes mentioned above, they can significantly affect the application. For instance, USCIS may examine whether you cooperated with law enforcement and the courts, whether you have a history of habitual intoxication or possession of illegal weapons, and whether you have consistently fulfilled your tax and financial obligations.

Consult an Attorney

Many applicants who prepare their documents without legal assistance end up facing deportation. This is because USCIS may find the applicant’s criminal record to be a basis for removal during the review of the file. Accordingly, it is best to seek help from an attorney when preparing your documents.

A permanent resident seeking U.S. citizenship must disclose all past criminal records if any. This requirement is because USCIS needs to verify that the applicant has good moral character before granting citizenship.

Usually, USCIS focuses on crimes committed within the five years prior to the citizenship application date (or three years if the applicant obtained a green card through marriage to a U.S. citizen). However, this timeframe is not absolute. USCIS may consider records older than five years, as it evaluates all possible circumstances during the review process.

The key point is that any event that could be considered a crime or even suspected criminal activity, regardless of how long ago it occurred, should be disclosed. If an applicant fails to reveal something and USCIS later discovers it, the application may be denied for misrepresentation. Even if the applicant has already been granted citizenship, it could be revoked. Therefore, it is safer to seek assistance from an attorney to ensure thorough preparation of all required documents.

Situations That Bar Citizenship
Depending on the type of crime, an applicant may be permanently or temporarily prohibited from applying for citizenship.

Committing murder or an aggravated felony results in a permanent ban from citizenship. This standard is firmly established by law, leaving no discretion for even USCIS to alter it. Consequently, anyone who falls under these categories will not be able to apply for citizenship in the future.

Although there is no single precise definition of an aggravated felony, a variety of offenses may be categorized as such under USCIS regulations. Even minor crimes may be recognized as aggravated felonies depending on the circumstances. The following are examples of offenses considered aggravated felonies:

• Sexual assault
• Sexual abuse of a minor
• Drug trafficking
• Fraud
• Illegally assisting the entry of foreign nationals (excluding a spouse, child, or parent)
• Any other offense USCIS deems to be an aggravated felony

Other crimes may temporarily bar an individual from applying for citizenship. Typically, the bar lasts for five years, but it may be three years if the applicant obtained a green card through marriage to a U.S. citizen. The following are examples of offenses that may temporarily bar citizenship applications:

• Prostitution
• Drug possession
• Illegal gambling
• Fraud
• Any other offense recognized by USCIS

In addition, serving 180 days or more in prison or having two or more sentences that add up to at least five years can also temporarily bar citizenship.

Additional Details
An applicant must disclose not only criminal records but also any arrests, dismissed cases, or incidents that did not lead to formal arrest. This is necessary for determining the applicant’s moral character, and any omissions could lead to a denial of the application or even revocation of citizenship if discovered later. The following documents may also be required:

• Official statements from the court or relevant agencies
• Original or officially certified copies of records issued by the court or relevant agencies
• Tax documents or certificates obtained from tax authorities
• Any other documents requested by USCIS

Evaluation of Moral Character
In assessing moral character, USCIS reviews not only the criminal record but also other behaviors or actions. If an applicant has engaged in conduct suggesting questionable moral character beyond the crimes specified above, it could significantly impact the application. For example, USCIS may consider whether the applicant cooperated with law enforcement and the courts, whether they engage in habitual drinking or possess illegal weapons, and whether they have consistently fulfilled tax and financial obligations.

Consulting an Attorney
Many applicants who prepare their documents without legal assistance end up facing removal (deportation). This is because USCIS might find the applicant’s criminal activity to be a deportable offense while reviewing the file. Therefore, it is advisable to seek the help of an attorney when preparing documents.

Types of Investment Visas
Foreign investors generally have two main options for applying for an investor visa:

• EB-5 Investor Visa
• E-2 Investor Visa (a popular choice)

Which visa is more suitable depends significantly on the individual’s circumstances and objectives. With EB-5, the investor must invest at least $1,800,000 (or $900,000 in a targeted employment area) in a company that employs ten or more U.S. workers to receive a lawful permanent residency (green card). The advantage of EB-5 is that the investor receives a permanent green card, and the overall processing time can be relatively short. Five years after obtaining the green card, they can apply for U.S. citizenship. During their stay, they can live and work anywhere in the United States, enjoying considerable benefits. However, the substantial investment requirement can be a barrier for many.

An alternative option is the E-2 visa. The main requirement for the E-2 visa is making a “substantial” investment. There is no fixed legal definition of how much “substantial” specifically is, but the required amount is typically much lower than that of EB-5, making it popular among investors seeking a smaller-scale investment option. However, it is crucial to recognize that the E-2 visa does not offer the same benefits as EB-5. Therefore, investors must carefully evaluate their situation to choose the visa best suited to their needs.

E-2 Investor Visa Eligibility and Requirements
All E-2 visa applicants must be nationals of a treaty country that has an investment treaty with the United States. Many countries—such as Canada, China, Japan, France, and Mexico—qualify, and South Korea is also recognized. Hence, any Korean national or Korean corporation can apply for an E-2 visa, regardless of whether they reside in Korea at the time of application.

As previously noted, applicants must invest a “substantial” amount. While the U.S. Embassy recommends $300,000, there is no absolute rule regarding the minimum investment. In practice, many applicants invest at least $100,000, and there are even past cases where an investment of under $100,000 (as low as $45,000) received E-2 visa approval. The exact amount required depends on the nature of the business being invested in and the proportion of the investor’s ownership relative to the total cost of the business.

Spouse and Children
An E-2 investor’s spouse or unmarried children under the age of 21 can apply for E-2 dependent visas, allowing them to live in the United States. The spouse may obtain an Employment Authorization Document (EAD) and work in nearly any job except positions requiring U.S. citizenship.

Children can attend public or private schools. However, once they turn 21, their E-2 visa status expires, so they must find another way to stay in the United States. Typically, they switch to an F-1 student visa to complete their remaining studies if that situation arises.

Important Considerations When Applying

1. Risk Assumption
   The investor must demonstrate that they have assumed real risk and committed themselves fully to the business. For example, this may involve paying a substantial amount of money upfront to acquire or start the business, clearly showing dedication and an acceptance of potential business failure. If USCIS perceives that the investor can easily abandon the investment without any personal risk, the visa application may be denied. Hence, it is more effective to show “I have fully prepared for and initiated this business,” rather than “I plan to start this business someday.”
2. Active Business Operations
   The investment business must not be “marginal.” In other words, the investor should not simply be earning enough to cover basic living expenses. The business must have a positive impact on the U.S. economy—by hiring U.S. workers or generating taxable income. Consequently, it is critical to prove to the U.S. immigration authorities that the business is not marginal and that you intend to manage and operate it actively.
3. No Passive Investments
   Since the purpose of an E-2 visa is to establish or acquire a for-profit enterprise and actively engage in its operation and management, passive investments such as stocks, real estate holdings, churches, or medical organizations (nonprofit entities) do not qualify.

Status or Visa Validity
The validity of an E-2 investor visa ranges from six months to five years. If you change status within the United States via USCIS, it typically grants a two-year stay; if you obtain the visa through a consulate, you may receive up to five years. Unlike EB-5, the E-2 visa does not provide for indefinite residency in the U.S. However, in principle, you can renew the E-2 visa indefinitely if you continue to meet the conditions. The critical point is that you must demonstrate your intention to return to your home country immediately when the visa expires. If there is any indication that you may attempt to remain in the U.S. after the visa’s expiration, the application could be denied.

Traveling Abroad After Changing Status
If you change your status to E-2 investor status while in the United States and then leave the country, you must reapply for the E-2 visa at a consulate before returning to the U.S. This is because you only changed status domestically; you did not actually obtain the visa itself. Therefore, if you anticipate frequent travel between the U.S. and Korea without restrictions, it is recommended that you obtain the E-2 visa from a U.S. consulate in the first place.

Permanent Residency (Green Card)
The E-2 visa does not directly lead to or convert into a green card. Fundamentally, when applying for an E-2 visa, the assumption is that you intend to return to your home country once your visa expires. However, if your E-2 business grows large enough to employ ten or more people, or if you serve as a manager for a multinational corporation while on an E-2, you may become eligible to apply for permanent residency. In most cases, E-2 visa holders will not obtain a green card through the E-2 alone, but it may be worth consulting with an attorney to explore alternative options.

Contact Information
The Law Office of K Choi P.C.
6131 Orangethorpe Ave. Suite 210
Buena Park, CA 90620
3435 Wilshire Blvd, Suite 1855
Los Angeles, CA 90010
(213) 285-0700 (Los Angeles Office)
(714) 295-0700 (Buena Park Office)
greencardandvisa@gmail.com
KakaoTalk ID – greencards

1. Duration
   • Effective from June 24 until the end of this year.
2. Affected Individuals
   • Those seeking to enter the U.S. from abroad via consulate-based non-immigrant visas, including:
     • H-1B (specialty occupation work visa)
     • J-1
     • L-1 (intra-company transfer)
     • H-2B (seasonal workers—excluding those in the food industry, healthcare workers, au pair nannies, and agricultural laborers)
   • Even if a person previously held an H-1B, H-2B, or H-4 visa, once the visa stamp expires, they will not be allowed to re-enter.
   • Among J visas, issuance for the following categories is suspended: intern, trainee, teacher, camp counselor, au pair, and summer work/travel program participants.
3. Exemptions
   • Individuals who are already in the United States.
   • Holders of J visas in categories such as student, professor, researcher, or specialist.
   • Holders of H-1B, H-2B, and H-4 visas with unexpired visa stamps.
   • Students and OPT (including F-1/F-2) are excluded from these restrictions.

Existing Visa Suspension Extended Through the End of the Year

1. Partial Suspension of Issuing Immigrant Visas at Overseas Consulates
   • Includes some employment-based immigrant visas and even stops immigrant visas for spouses and children of permanent residents, as well as siblings and parents of U.S. citizens.
   • However, the preparatory steps for obtaining a visa, such as family-based petitions and waiver applications, can still proceed (since these are processed within the United States).
   • Employment-Based Immigrant Visas:
     • Those deemed to be in the national interest are permitted. For example, EB-5 applicants investing $900,000 or more, NIW (EB-2) applicants who qualify based on national interest, and EB-1 applicants whose extraordinary ability is considered to benefit the nation can likely have their applications approved.
     • Medical professionals such as doctors and nurses, as well as applicants involved in COVID-19 research, are allowed to receive immigrant visas.

Starting October 2, the overall increase in USCIS fees can be viewed as part of an “anti-immigrant” policy, which is undeniably “political” in nature.

Among these fee increases, the most noticeable change at first glance is the jump in the naturalization (citizenship) application fee. It went from $725 to $1,200—a staggering increase of $475. This clearly reveals an intent to make the citizenship application process more difficult. In other words, the government is not thrilled about immigrants obtaining citizenship and becoming voters. It appears to be an attempt to reduce the number of first-generation immigrant voters as much as possible.

Moreover, the cost of applying for a green card (permanent residency) has been raised in a way that is not immediately obvious. Although the I-485 application fee was lowered from $1,140 to $1,130—making it seem as though green card application costs decreased—this is, in fact, misleading.

USCIS has “deceptively” increased the overall cost of obtaining a green card. Previously, filing fees for work authorization (EAD) and travel authorization (Advance Parole) were included at no extra charge, but now separate fees of $550 and $590, respectively, are required. Given that most green card applicants typically apply for both work authorization and travel authorization, the total cost of a green card application has effectively risen by $1,015 (accounting for a $55 discount on the biometrics fee). By reducing the main I-485 fee by $10, USCIS is creating the illusion of a price reduction. The same is true for employment-based green card applicants.

Furthermore, when multiple family members apply for work authorization and travel authorization, the costs can rise dramatically. If the green card application remains pending for a long period, renewals for work authorization and travel authorization will also generate additional expenses. Consequently, these costs have increased more than one might initially realize.

In addition, only the work authorization fee for DACA recipients remains at $410, while all other applicants must pay $550. This appears to be a form of “compensation” for reducing DACA’s validity period from two years to one. In other words, by halving the DACA validity period, the overall cost effectively doubled, so it seems they felt raising the DACA work permit fee on top of that would be excessive.

Also, fees for the H-1B visa ($555), L visa for intracompany transferees ($805), and O visa for individuals with extraordinary ability ($705) will go up as well—likely aimed at making it harder for immigrants to obtain employment in the U.S. The fee for a change of status, which used to be $370, will increase to $400.

Meanwhile, some fees have been lowered. The green card renewal fee will drop from $540 to $445, and the biometrics fee will decrease from $85 to $30. The fee for an employer petition (I-140) will also be lowered from $700 to $555. Moreover, for certain applications that can be submitted online, applicants will be able to save $10 by filing electronically.

The Child Status Protection Act (CSPA) is commonly known for preventing children from “aging out.” In other words, even if a derivative beneficiary was under 21 when they were included in the petition, and then they turned 21 during the lengthy processing period, the law enables them to retain their eligibility as a derivative child. For instance, in employment-based green card or family-based petitions (including petitions by U.S. citizen children), a principal applicant’s derivative child must remain unmarried and under 21 to be eligible for a green card (or visa). If a case is pending for an extended period, it’s easy for the child to surpass age 21.

Now, consider a scenario where a child under 21 is petitioned as the minor child of a lawful permanent resident (LPR), but then crosses age 21 by the time the parent becomes a U.S. citizen. Does the child simply become an adult child of a U.S. citizen (F1), or can they, under the CSPA, still be considered the minor child of a U.S. citizen—that is, an “immediate relative”? Being treated as an immediate relative not only affects whether one has to wait for a priority date, but also whether one can apply for a green card despite unlawful presence. In other words, it can be more serious than one might think.

No direct provision in the Immigration and Nationality Act addresses this situation. For unmarried adult children of LPRs (F2B), the law explicitly provides an “opt-out” regulation allowing them to remain in F2B status even if the parent naturalizes. But there is no similar guidance about whether an F2A child can convert to immediate relative status once the parent becomes a U.S. citizen.

Until now, USCIS has maintained that if a child in F2A status reaches 21 and then the parent naturalizes, the child’s category changes to F1, meaning an adult child of a U.S. citizen. The Board of Immigration Appeals (BIA) and USCIS have interpreted the CSPA as supporting this approach.

However, a recent decision by the Ninth Circuit Court of Appeals diverged from USCIS’s interpretation. (Tovar v. Sessions, No. 14-73376 (9th Cir. February 14, 2018)). According to this ruling, the child still benefits from the CSPA, effectively preserving minor-child status, which would make them an immediate relative of the U.S. citizen. In other words, the court recognizes the individual as a “minor child” under CSPA rules.

The court held that a child’s age should be considered not only in terms of actual years but also the “legal” age calculated under the CSPA. It also reasoned that the law does not provide an “opt-out” provision for F2A like it does for F2B because, in the case of F2A, beneficiaries are intended to convert automatically to immediate relative status once the parent naturalizes.

If a child “ages out” into the F1 category, they face a much longer waiting period. Moreover, if the child has no valid immigration status while waiting, things can become even more complicated. So it is fortunate that there may be a way to avoid this predicament.

Under the CSPA, you calculate the “CSPA age” of the F2A child using the statute’s formula; if that calculated age is under 21, the child qualifies as an immediate relative. Thus, even after the parent’s naturalization, the child may remain in the immediate relative category if their CSPA age is under 21.

Unfortunately, because this ruling comes from a federal circuit court (the Ninth Circuit), it does not automatically apply nationwide.

Some people may be unfamiliar with the concept of a “gap visa.” This term arises from issues related to a Change of Status (COS), particularly in light of recent stricter USCIS policies for changing status to F-1 student status.

Previously, as long as you submitted a Change of Status application before your current status expired, you could remain in the U.S. while the application was pending—no matter how long it took—and eventually receive approval. Once approved, no further issues arose. However, USCIS recently changed its rules to require that you maintain a valid nonimmigrant status (e.g., B, H, etc.)—not just a period of stay—until at least 30 days prior to the program start date (the day classes are scheduled to begin).

The problem arises when a Change of Status application remains pending for a long period of time. For instance, if it takes about six months for your application to be processed, your current visa status might expire, and by that time, the start date for your F-1 student status could already have passed. If that happens, even if USCIS wants to approve your Change of Status, they cannot due to the regulations.

Hence the idea of a “gap visa.” (In reality, this is a term coined by the author.) The term “gap” is used because it is necessary to fill the gap between your current nonimmigrant visa status and your student visa (F-1) status, ensuring that this gap does not exceed one month.

Therefore, if your current visa is close to its expiration date and you want to apply for a Change of Status, it is wise to apply for a “gap visa” simultaneously. If you suddenly try to apply for a visa later, it can be difficult—especially if you no longer hold any valid visa status, which is often a prerequisite for changing to many types of nonimmigrant visas. (The same rules that apply to F-1 student status changes are gradually expanding to additional visa categories.)

In addition, if you suddenly decide to apply for a gap visa later on, you would need to wait for that approval before you can obtain your student visa. Waiting for the gap visa approval could cause your I-20 for the student visa to expire in the meantime, leading to a vicious cycle. Therefore, this is a concept that must be kept in mind when applying for a Change of Status.