If someone applies for a Green Card as a child but he turns 21 before his application is approved, that person can no longer be considered a child for immigration purposes. This situation is commonly referred to as “aging out” and often means that these applicants would have to file a new petition or application, wait even longer to get a Green Card, or may no longer be eligible for a Green Card.

The U.S. Congress has recognized that many children were aging out due to long USCIS processing time, so they enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. The CSPA went into effect on August 6^th, 2002.

CSPA does not change the definition of a child. Instead, CSPA provides a method for calculating a person’s age to see if they meet the definition of a child for immigration purposes.

The calculated age is the child’s “CSPA age.” This allows some people to remain classified as children beyond their 21^st birthday. However, CSPA does not change the requirement that you must be unmarried to remain eligible for classification as a child.

Your CSPA age is the result of subtracting the number of days that the immigrant visa petition was pending with USCIS (from date of receipt to date of approval, including any period of administrative review) from the actual age of the applicant on the date that the visa became available.

The equations to calculate the CSPA age is:

The child’s age on visa availability date – (The child’s Age on date petition was approved – The child’s Age on date petition was received by USCIS) = CSPA age

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada and Australia.

Domicile is the place where a person has his or her principal residence. The person must intend to keep that residence for the foreseeable future. The sponsor (or Petitioner) of an immigrant must have a domicile in the United States before the visa can be issued. This generally means that the sponsor must be living in the United States.  In certain circumstances, however, one can be considered to have a domicile while temporarily living overseas.

Domicile is a complex concept and must be evaluated on a case-by-case basis. The burden of proving domicile lies with the petitioner, who must offer enough evidence for the officer reviewing his/her application.

To qualify as a sponsor, a petitioner residing abroad must have a principal residence in the U.S. and intend to maintain it indefinitely. Lawful resident (LPR) sponsors must show they are maintaining their LPR status.

Many U.S. citizens and lawful permanent residents reside outside the United States on a temporary basis. “Temporary” many cover an extended period of residence abroad. The sponsor living abroad must establish the following in order to be considered domiciled in the United States:

• He/she left the United States for a limited and not indefinite period.
• He/she intended to maintain a domicile in the United States, and
• He/she has evidence of continued ties to the United States.

The Immigration and Naturalization Act of the United States of America requires that a sponsor of an alien for legal permanent resident status in the United States must be domiciled in the United States.

Domicile means the place where a sponsor has his or her principal residence, with the intention to maintain that residence for the foreseeable future.

Establishing Domicile

To prove, establish or reestablish domicile, a sponsor must set up and maintain a principal residence in the United States. An individual must demonstrate ties to a house or apartment in the United States that are consistent with ties that a resident with legal domicile would possess. There is no minimum time required to establish residence, but a credible demonstration of an actual residence in the United States is required.

A convincing combination of the following types of action might be considered evidence of domicile:

• Establishing an address in the United States that corresponds with your place of residence
• Working or seeking employment in the United States
• Voting in local, state or federal elections
• Paying U.S. income taxes
• Enrolling children in schools
• Taking steps to relinquish residency in a foreign country
• Applying for a social security number
• Setting up and maintaining bank accounts in the United States
• Transferring funds to the United States
• Making and maintaining investments in the United States

Proof of Maintenance of Current Legal Domicile During Period of Residence Abroad

An individual who resides abroad may be considered to have maintained legal domicile in the United States if he or she has maintained sufficient ties for a finding that the individual would be subject to the jurisdiction of a court in the United States. Absent such a finding, consular officers must review the evidence of ties presented by a sponsor to determine whether the individual has maintained sufficient ties for domicile or appears to have abandoned any prior principal residence in the United States.

A convincing combination of the following types of action might be considered evidence of domicile:

• Maintaining an address in the United States that corresponds with a place of residence to which you have a right to return and could return easily to take up residence
• Receiving mail, especially from governmental entities, at the residential address
• Working or seeking employment in the United States
• Voting in local, state or federal elections, using the residential address
• Paying U.S. income taxes using the residential address
• Maintaining a spouse or minor children in the US residence during the sponsor’s time abroad
• Maintaining active usage financial accounts in the United States using the residential address
• Maintaining active professional licensure, where applicable, in one’s career field in the jurisdiction of principal residence

Additional information explaining the distinction between residence and domicile is available. Re-Establishing Domicile:

A sponsor who previously maintained a domicile in the United States but has been determined to have abandoned it must reestablish domicile anew. The sponsor may have evidence of prior but not current domicile at the time of an initial interview. Sponsors must submit evidence of reestablishment of domicile in the United States that indicates a clear intention to reside primarily in the United States along with an intention to abandon a foreign domicile.

A convincing combination of the following types of action might be considered evidence of domicile:

• Establishing an address in the United States that corresponds with your place of residence
• Working or seeking employment in the United States
• Taking steps to relinquish residency in a foreign country
• Voting in local, state or federal elections, with a United States mailing address
• Paying U.S. income taxes
• Enrolling children in schools in the United States
• Opening and/or maintaining active usage financial accounts in the United States

In analyzing whether a sponsor has abandoned a foreign domicile or intends to abandon the foreign domicile concurrent with the establishment of a domicile in the United States, Consular Officers will consider that evidence of continuing and prospective employment or residence in a foreign country would indicate that the sponsor has not established his or her principal residence in the United States.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada and Australia.

Application for a Family-Based Green Card: the regular route.

The regular route consists of two stages. In the first stage, an application must be submitted (along with supporting documents) to the U.S. Citizenship and Immigration Services (USCIS) and must prove the following: The petitioner is a US citizen or resident, the marital relationship between the petitioner and the spouse, and the “bona fide” (genuine) relationship between them.

Once the USCIS approves the first stage of the application, it will be possible to proceed to the second stage, conducted by the National Visa Center (NVC). At this point, it needs to be proven that the petitioner, has the financial means to sponsor their spouse to immigrate to the United States and start establishing their life there without being a burden on the economy of the United States. The applicant for the green card must also issue a police record to show any criminal history and must undergo a medical exam.

Once the NVC accepts all the forms and documents for the second stage of the application, the file will be forwarded to the U.S. Embassy or Consulate in the country of the applicant. The Embassy or Consulate sets up an interview date, and after having a successful interview, the Embassy or Consulate issues the applicant an immigrant visa.

The process can take anywhere from 8 months to a year (and often even longer) from the date the first stage of the application is submitted. The length of time depends on the immigration authorities, and their ability to process the case within a reasonable time, the extent of the documents submitted along with each step of the process, requests for additional evidence (RFE) that are sometimes received to provide additional information for the immigration officials and more. Of course, there is also the importance of cooperation on the part of the client.

Application for Family-Based Green Card: Direct Filing, only for U.S. citizens.

Direct Filing is available only for U.S. citizens (not permanent residents). For a direct filing application, it is important to show that the application is urgent, this can be demonstrated by the need for the U.S. citizen to return to the United States. In most cases, the proof of urgency is given when the U.S. citizen has a job offer from an employer in the United States.

In the first stage, the U.S. Embassy or Consulate should be asked to recognize the couple’s case as urgent. The explanation for the urgency in the case must be specified.

After receiving approval from the Embassy or Consulate, ​​we move on to the second stage of the application. In the second stage, the marital relationship between the U.S. citizen and the spouse must be proven, similar to the first stage of the regular route from above.

Once the Embassy or Consulate confirms that the second stage has been successfully completed, the third stage begins, where the applicant will be interviewed at the embassy. The applicant will need to prepare before the interview to bring evidence proving that the US citizen has the financial means to support their spouse to allow them to immigrate to the US without becoming a public charge. Lastly, the applicant will need to bring police certificates, medical documents, and other up-to-date information, which our attorneys will assist the applicant to gather.

The process is quick and can sometimes be completed within a few months, sometimes even in less than two months from the date of submission of the application. Again, as in the first option, the duration of the application also depends on the immigration authorities and the degree of responsiveness of the client and his / her cooperation.

Application for Adjustment of Status

An application to adjust your status is an application that is submitted when the Green Card applicant is already legally residing in the US and is interested in completing the process without leaving the US.

An application to adjust status will need to be submitted to the USCIS along with the forms and documents proving the relationship from the first step of the regular route and the documents proving financial support from the second stage of the regular route.

It is very important to note that to submit this application, the applicant must be at a stage where their visa application is in a current status and there is a visa immediately available for them without a waiting period. Only in this situation, the green card applicant is allowed to remain in the US while their adjustment of status application is pending even if their visa on which they entered the US is no longer valid.

Despite the above, applying for adjustment of status does not confer additional rights to the Green Card applicant. If the applicant would like to work in the United States while the application is being processed, he must submit a special application for a work authorization. In addition, if the applicant decides to leave the United States prior to the decision of the USCIS, their application will be denied. Therefore, if it is necessary to leave the United States before there is a final decision in the case, another application for the leave of absence (from the United States) must be submitted and the applicant needs to wait until it is approved.

After the USCIS examines the application for adjustment of status and if everything is in order, the Green Card applicant will receive an invitation for an interview, whereafter the immigration authorities will decide whether to approve the Green Card application.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada and Australia.

As a  legal permanent resident, you have a Green Card which is usually valid for 10 years. However, having an actual valid Green Card is not enough to be an active Green Card-holder. To keep your status active as a Lawful Permanent Resident (LPR) in the United States, you will need to move to the United States and permanently live in the United States for at least half of the time. Basically, once you become an LPR, your center of life should be in the United States.

There could be many reasons for not being able to permanently move to the United States, which requires you to remain abroad for another year or two. A valid Re-Entry Permit allows you to live, work and study abroad without losing your status as an LPR. With a valid Re-Entry Permit, you can first arrange your work and family obligations abroad before making that big step of moving to the United States. With a Re-Entry permit in hand, you will only need to enter the United States once in two years (and after 4 years – once in a year).

Please be aware that even in the current insurmountable times of COVID-19, the USCIS (the United States Citizenship and Immigration Services) did not give any exemption for permanent residents to reside abroad without having a valid Re-entry Permit.

2. What happens if a Green Card holder is absent from the United States and does not apply for Re-Entry Permit?

If you do not have a (valid) Re-Entry Permit, the Customs and Border Protection (CBP) official can consider your period of absence from the United States as evidence that you have abandoned your LPR-status. A CBP official could believe you planned to relocate permanently to a country other than the United States. To avoid losing your LPR-status, you will need to have a valid Re-Entry Permit to keep your LPR-status active while residing abroad. With a Re-Entry Permit, you prove that you are not abandoning your LPR-status.

3. What does the application include?

Based on your answers in DCLO’s client-friendly questionnaire, our attorneys will draft for you the government forms, write the necessary supporting letters and attach all the required documents. The documents supporting the application should prove two issues:

1. They need to prove the reasons why you need to remain abroad (outside the US), and
2. They need to prove your ties to the United States.

We can prove your temporary obligations abroad with, for example, an employment letter, school enrolments, or health documents. Your ties to the United States will be proved by, for example, an immediate family that lives in the US, US tax return transcripts, US bank accounts, property in the US, job offers in the US, volunteer work in the US, participation in (religious) groups in the US and affidavits.

Every Re-Entry Permit application is different. This allows us many possibilities to provide strong proof for your application.

4. How to submit the application?

After collecting all the forms and documents, we will send you the application by FedEx to your home address. In some cases, it is advisable for you to carry the application with you when entering the United States. Then you can sign the application and arrange it according to our clear guidelines and take the application with you to the United States.

After entering the United States, you will submit the application to the USCIS. The reason why you need to apply from within the US instead of sending a FedEx from abroad is that you must be physically present in the United States while your application is submitted in order to be eligible for a Re-Entry Permit.

Next, there are the biometrics checks. These are verifying your identity.

Usually, we recommend our clients to be in the United States for about 4-6 weeks to be able to also give biometrics. But nowadays the Application Support Centers cannot handle as many biometrics’ appointments as before the COVID-19 pandemic, which means you will need to take more time into account to give your biometrics. In some cases, applicants may even be exempted from giving the biometrics checks. In case you need to go back abroad (outside the US), and the biometrics appointment date is not convenient for you, we can request to reschedule your appointment.

Nevertheless, you will not need to wait in the United States for the final approval of the application. After completing the biometrics, you can go back abroad. If everything goes successfully, your Re-Entry permit will be sent to you at a US address we gave in advance. Many of our clients are using our law office’s US address for this purpose. Once received at our offices, we will send you the issued Re-Entry Permit permit(s).

5. What to do in case of travel difficulties due to the COVID-19 Pandemic?

Because of the continuous changes in the rate of positive tested people per state, every state has its own travel restrictions. Our attorneys can inform you about the travel restrictions (which differ enormously) per state. Some states do not require mandatory 14-day self-quarantine, and some do. The same applies for bringing a negative PCR-test or not. If you cannot find a way to travel now to submit the application, due to the pandemic’s closure of the airports in the country you are residing, or due to any high-risk health situations, our attorneys may help.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader. This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, and Australia.

Certain conditional restrictions and limitations were placed on entry into the United States of nationals from eight (8) countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. Chad was later removed from the list following amendments to the Travel Ban on April 10^th, 2018 (See Amendment to Presidential Proclamation 9645 – April 10, 2018) because Chad was found to meet the baseline criteria established by the Department of Homeland Security (see below).

On June 26^th, 2018, the United States Supreme court issued a decision regarding Presidential Proclamation 9645, ruling that the Proclamation was a lawful exercise of the President’s authority under the Immigration and Nationality Act (“INA”) (See Supreme Court Decision – June 26, 2018).

Baseline Requirements

Three baseline requirements were identified that all nations must abide by in order for the United States to allow its people into the country:

1. Identity-management information. A country should be able to prove that people attempting to enter the United States are who they say they are. There are several ways to accomplish this, including passports with data chips and sharing information with the United States.
2. National security and public-safety information. A country should be able to provide information as to whether a given person has a history of terrorist activity or criminal behavior.
3. National security and public-safety risk assessment. A country should not be a safe haven for terrorists and should cooperate with certain United States laws (for example, allowing an immigrant from that country who has been deported from the United States to return).

It was found that seven countries did not fulfill the above baseline requirement and the nationals of these are currently subject to various travel restrictions contained in the Proclamation:

The above suspensions apply only to those individuals who: (a) who were outside the United States on the effective date (October 18, 2017) and are subject to the Travel Ban; (b) did not have a valid visa on the effective date; and (c) did not qualify for a visa or other travel document under section 6(d) of the Travel Ban.

Exceptions

Exceptions to the ban include:

1. Lawful permanent residents (green card holders);
2. Foreign nationals admitted or paroled to the United States on or after the effective date;
3. Foreign nationals with travel documents that are not visas that are valid before or issued after the effective date;
4. Dual nationals traveling on a passport that is not one of the affected countries;
5. Those travelling on a diplomatic or related visa;
6. Foreign nationals who have already been granted asylum, refugees who have already been granted admittance, and those who have been granted withholding of removal, advanced parole, or protections under the Convention Against Torture.

Waivers

A consular officer may, on a case-by-case basis and within their discretion, grant a waiver to affected immigrants for certain reasons. The person seeking entry must prove three criteria:

1. That denying entry would cause the foreign national undue hardship;
2. That entry by the foreign national would not pose a threat to the national security or public safety of the United States; and
3. That entry by the foreign national would be in the national interest.

Waivers could be granted to those individuals who have had significant contacts, work, or business in the United States. Alternatively, if a foreign national has immediate family members (spouse, parent, sibling or child) in the United States, a denial of entry could cause undue hardship.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada and Australia.

Additional Resources:

Travel.State.Gov Resources on Travel Ban

Department of Homeland Security Fact Sheet and Frequently Asked Questions

The benefits of the Study Permit:

1. Even if you don’t need a study permit, you may want to apply for one. If you want to work while you’re studying, or you decide to study longer than 6 months in Canada, you’ll need a study permit.
2. You will gain the opportunity to experience living, working and studying in Canada, before making a permanent move to Canada.
3. By studying in Canada, you will be able to improve your English and also your school credentials. Both of these may increase your points towards the Express Entry program in Canada for skilled workers.
4. Your spouse or common law partner may be able to get a work permit for the duration of your studies.
5. After you graduate from your program of studies you may be able to get a post-graduation work permit. The work experience you gain while working may help you to qualify for permanent residency.

These are only a few of the potential benefits that you may have with your Study Permit.

If you want a Study Permit, what would you need to do next?

1. You will have to collect documents such as Passport photographs, Academic Documents, Police Certificate, proof of sufficient funds to cover your tuition and living expenses for at least one year in Canada and more.
2. You will need to complete your application forms.
3. Any document not in English or French must be accompanied by a certified translation.
4. You will have to pay administration or tuition fees.
5. Most people have to give biometrics when they apply for a visitor visa, a study or work permit or permanent residence. Canadian visa officers use biometrics to confirm your identity.
6. You may need a medical exam to study in Canada.
7. Preparations such as paying administration or tuition fees are done at your own risk until you receive from the Embassy the Letter of Authorization to study in Canada.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada and Australia.

MPNP-account

An important part of the sub-stream is that SWO-applicants need to demonstrate their connection to Manitoba. This can be through the support of a family member or friends, a previous temporary stay for education or work or they received directly an “Invitation to Apply” (ITA) from the MPNP. After receiving an ITA, the applicant has 60 calendar days to submit a complete application for permanent residence, which means all supporting documents need to be provided. If it is not possible within that time, the applicant can decline the ITA and be considered for another invitation in the future. When there is no responding to the ITA, the ITA will expire and the applicant will no longer be in the Express Entry Pool.

If you already have an active application with the MPNP you can only submit an Express Entry profile if you are directly contacted by the MPNP and they advise you to submit. When you apply for a permanent residence, applicants will receive a Letter of Approval from the MPNP which includes an outline of all the steps.

Express Entry

The minimum requirement for this Express Entry is an acceptance into the online pool by providing a valid Express Entry ID and a so-called Job Seeker Validation Code. You can find this Validation Code in your account under the section “To register with Job Bank”. You also need to complete an assessment for Educational Credentials and provide evidence of sufficient funds meeting higher federal requirements.

In conclusion applicants who choose for the SWO-stream through the sub-stream of the Express Entry need to be eligible for both: the MPNP and the Express Entry. This sub-stream is especially created for candidates with a strong connection to Manitoba, such as family, study or work ties. Applicants who are already have an active MPNP-account and want to apply for the Express Entry sub-stream, depend on a direct contact by the MPNP.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, and Australia.