Solution focused legal thinking
My name is Paul Wayburne, and I am the owner of Wayburne Law Firm, which specializes in immigration law. As an immigrant from South Africa, I am keenly aware of the difficulties of moving to a new country, adjusting to a different culture, establishing new social and business relationships, and building networks. Even prior to stepping foot on United States soil, immigrants typically feel excitement and hope but also fear. My role as your immigration lawyer is to strategize your immigration so that you choose a pathway that makes sense for you and your family.
There is a common misconception among potential immigrants that family immigration is a “DIY” or “do it yourself” endeavor. The forms are available on the USCIS website, are in English, and they’re easy to complete. USCIS also publishes instructions that tell me the evidence I need. As such, I don’t need a lawyer, so the conventional wisdom goes. Typical questions and issues an average person doesn’t know include the following:
Issues concerning marriage-based Green Cards
- If I am looking to immigrate based on a marriage to a US citizen, what pathways are available to me that are more appropriate for my family, and what logistics make more sense for my family?
- What happens if I am unmarried but engaged to marry a US citizen? Is it better for me to marry overseas and then apply for a marriage-based Green Card either inside or outside the US, or must I follow the fiancé visa route while my fiancé and I live separately in two different countries?
- What do I do if I am already married, is it better for me to apply for a Green Card inside or outside the US?
- Can’t I just come to the US on a tourist visa, (get married) and then apply for a Green Card? What are the logistical and legal hurdles concerning entering the US on a non-immigrant visa and then applying for a Green Card? When do I get employment authorization? May I leave the US if I apply for a Green Card inside the United States.
- If I am petrified of immigration because I am worried about earning a living in the US and adapting culturally to the US, which pathway would give us the best soft cushion on our arrival?
- If my US Citizen spouse/fiancé and I have a strained relationship, which pathway would give me a better chance of succeeding with my immigration and my marriage?
- What do I do if my spouse and I want to separate our finances?
These questions reveal that prospective immigrants must make important decisions. It’s hard for a couple to make these decisions based on information available online and unreliable advice from strangers on Facebook.
Even once a strategy and pathway are decided upon, a prospective immigrant may be unaware of foundational legal issues that may complicate or threaten their immigration case. These may include past immigration violations, such as entering the United States outside a point of entry, overstaying a visa, and working without work authorization, to name but a few. Not all immigration violations and criminal convictions may not be a problem if properly dealt with. Other hurdles may be past drug usage and criminal history, to name but a few. Even if a prospective immigrant has a squeaky-clean record, what is his/her spouse is a permanent resident and not a US citizen then what? What happens if I don’t have a lot of money or my spouse doesn’t want to support me financially? How do I calculate my income?
Potential complications of an immigration case are endless, and we haven’t even completed the forms (which forms do I complete?)! Intelligent people and even the best attorneys can make mistakes on forms and submit inappropriate evidence, not enough evidence, wrong evidence, and bad evidence. That’s why it’s important to consult with an experienced and caring attorney who will do his best to help your family make the best decisions, overcome legal hurdles, guide evidence production, and ensure forms are answered completely and correctly.
Family-based petitions
Aside from marriage-based petitions, we assist clients with all family-based petitions based on a relationship with US citizens and permanent residents. However, there is a lot of nuances here. The United States limits the number of visas available for categories of relatives who are not “immediate relatives.” Immediate relatives are spouses, unmarried children under the age of 21, and parents of U.S. citizens. This means that these relatives may be eligible for a Green Card regardless of the number of applicants in their category. In other words, there is always a visa available for immediate relatives.
For other classes of relatives, there is an order of priority based on what is referred to as a “Priority Date,” based on the filing date, and a visa only becomes available when the Priority Date becomes “current” in terms of the Visa Bulletin of the current month. Preference-based categories are as follows:
(F1) Unmarried Sons and Daughters of U.S. Citizens (Beneficiary/Green Card Applicant is over 21 years of age)
(F2): Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:
(F2A) Spouses and Children of Permanent Residents:
(F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents
(F3) Married Sons and Daughters of U.S. Citizens
(F4) Brothers and Sisters of Adult U.S. Citizens
Importantly, U.S. citizens may petition for their parents (immediate relative category), married sons, and daughters (third preference), and siblings (fourth preference). In every category other than petitions in favor of immediate relatives of US Citizens, only once the Priority Date becomes current may one apply for a Green Card either inside or outside the United States. There are also limitations on the number of visas available for each category, even if a Priority date is current. Even fewer visas are available for citizens of China, the Philippines, and India. In certain circumstances, Permanent Residents may petition for their spouses concurrently with filing for a Green Card within the US. However, the state of the law is extremely complex for this latter category, and a couple must seek legal advice when entertaining such an option.
COMMUNICATION:
Where legal care meets clear legal communication
We provide effective, professional, and diligent immigration legal services and advice to individuals and families seeking a path forward in the United States.
From visas and green cards to removal defense and complex immigration cases, we handle each matter with care and precision.
We also offer a twenty-minute phone call, not as a legal advice session, but to determine whether your case is one I can assist with. Our goal is to ensure you know from the start whether we are the right attorney for your immigration needs.
PUBLICATION:
Substantive equality and adverse effect discrimination in the context of National Health Insurance in South Africa.
Paul A. Wayburne
The value of substantive equality, and the rights to equality and not to be subjected to unfair discrimination in section 9 of the Constitution have rarely been considered in relation to debates on health care reform. This is so because there is a specific right to have access to health care services in section 27 of the Constitution. This article examines the concept of constitutional equality in the context of the South African government’s National Health Insurance policy (NHI).