Do you qualify for a fiance visa?

by John Polivick, Esq.

In this age of the internet more couples are meeting online.  I would say a third of my friends who have married within the last 15 years met online.  And the internet has no borders, resulting in more international relationships and, of course, marriage.  What if you meet someone online, one of you is from outside the U.S. and decide you want to get married?  You or your fiance will need to get a K-1 visa, which is fairly straightforward. Wedding couple on the beach

First, you must be a U.S. citizen, not just a green card holder or permanent resident. Second, you must both be legally eligible to marry.  If you were married before, the divorce or annulment must be final.

Third, you must have a genuine intent to get married.  The old days of getting married to get a green card are over, and the penalties are severe.  Fourth, you and your fiance must have met face to face within the past two years.

The fiance visa lasts for 90 days, which gives you plenty of time to marry.  The non U.S. fiance may get permission to work immediately upon arriving in the U.S.

Unmarried children under 21 can come to the U.S. with your fiance and all may apply for green cards and eventual citizenship.

Happy St. Patricks Day

by John Polivick, Esq.

When there’s a discussion of undocumented individuals living in this country, the discussion usually revolves around Hispanics.

But hold your shamrocks – believe it or not, there are approximately 50,000 undocumented Irish people in the U.S. image-leprechaun

This writer must divulge that he is about 50% Irish, from the maternal side.  So my feelings toward the Irish have always been very fond.  The fact that we have many Irish here without the proper paperwork is, to me at least, just another reason to repair our broken immigration system.

The Columbia Chronicle has an article about this subject and is worth a look.  You can find it here.


Foreign Students on the Rise – Good for the U.S.?

by John Polivick, Esq.

Foreign students have been coming to the U.S. for college degrees for many years, and this year number approximately 764,000 students. And while there has been an increase of 200,000 foreign students in the past six years alone – 160,000 of those are from China – many ask if it is good news for the U.S.

State spending on higher education is down 28% in the past five years. But foreign students almost always pay full tuition and fees. They open bank accounts and spend money at Walmart, Best Buy and Starbucks. And that is good news for cash-strapped universities and colleges, as well as the economy in general.

USF CampusIndividuals come to the U.S. to study under the F (student visa), J (exchange visa) or M (vocational visa) visas. Their duration of stay is generally the length of their academic program, such as four years for a bachelors degree.

Students who have F-1 or M-1 visas can only attend academic or vocational schools that have been designated by the Dept. of Homeland Security. These schools are authorized to issue the appropriate documentation to the student.

While attending school, foreign students can work up to 20 hours per week on campus in certain positions, and full time during vacation periods. Curricular practical training is available to F-1 students who have been enrolled for at least 9 months, which can be waived for graduate students.

If a foreign student has an unforseen change in financial circumstances, he or she can ask permission to work off campus for a maximum of 20 hours per week after her first year of school. They can also change their courses of study without formal permission.

Additionally, foreign students are allowed to transfer to another college or university by following a certain procedure. Students can also get permission to work in optional practical training (OPT) after graduation for 12 to 18 months.

So why has there been such an increase in foreign students from China? Many in China apparently believe that a degree from an American university carries more weight than one from China. Further, there has been a dramatic increase in the Chinese middle class, along with a corresponding ability to pay expensive out of state tuition and fees.

But perhaps equally important is “Gaokao.” Gaokao, or “high test,” is somewhat similar to the SAT given to high school students here. But Gaokao lasts for 9 hours over 2 days with an 800 word essay, and has become somewhat dreaded in China. Gaokao determines which college a young Chinese student can attend, or if he or she can attend college at all.

Potential college students from China can skip Gaokao and study at a U.S. university, and our universities are welcoming them at a record pace.

So is the increase in foreign students coming to this country good for the U.S.? Absolutely. It is not only a good thing for our economy, but a valuable addition to our academic institutions and our culture as well.



Border Security Backfires

by John Polivick, Esq.

Immigration from Mexico to the U.S. has, according to Princeton University’s Doug Massey, come in five different waves.  But after the U.S. passed comprehensive immigration reform in 1986, we began militarizing the Mexican border.

Massey theorizes that undocumented workers – also known as migrant workers – used to freely travel back and forth between Mexico and the U.S.  He says in 1980, 46 per cent of undocumented workers returned to Mexico within 12 months.  By 2007, that number had declined to a mere 7 per cent, largely in part because of increased border security.

Whether you agree with Massey or not, it is an interesting theory.  Read a recent article about this issue in the ©Tampa Bay Times, which suggests that border security has, indeed, backfired:

Getting the immigration debate exactly wrong

The immigration debate needs a dose of history. For example, in the 1920s 650,000 Mexican workers came legally, causing the number of Mexicans in the United States to rocket to 750,000 in 1929, from 100,000 in 1900.

Everything you know about immigration, particularly unauthorized immigration, is wrong.

So says Princeton University’s Doug Massey, anyway. Massey is one of the nation’s pre-eminent immigration scholars. And he thinks we’ve wasted a whole lot of money on immigration policy and are about to waste a whole lot more.

Massey slices the history of Mexico-to-U.S. migration into five periods. Early in the 20th century, there was the era of “the hook,” when Japan stopped sending workers to the United States and the mining, agriculture and railroad industries begged Mexican laborers to replace them. It’s called “the hook” because laborers were recruited with promises of high wages, signing bonuses, transportation and lodging, most of which either never materialized or were deducted from their paychecks.  Continue reading


by John Polivick, Esq.

August 15, 2013 marked the one year anniversary of DACA, formally known as Deferred Action for Childhood Arrivals.

DACA does two things for those who are eligible:  it suspends any proceedings for removal (deportation), and it allows those individuals – known as the “Dreamers” – to  legally work in the U.S.

During the first year of DACA’s existence:

  • More than half a million people have applied: 74% approved, 1% denied, the rest under review. More than half the estimated eligible immigrants have applied.
  • 30% of applicants came to the US by age five, and 75% of applicants have lived in the US for more than 10 years.
  • 75% of the applicants were born in Mexico, 10% in Central America, 7% in South America, 4% in Asia and 4% in the rest of the world.


If you are eligible to apply for DACA, or think you are, apply now, or contact an immigration attorney.

Citizenship and Your Children

by John Polivick, Esq.

Frequently I get asked about children and citizenship, and the question is usually whether children automatically become citizens when one or both parents become naturalized citizens.

family of four

First, if you give birth to any child in the U.S., that child is a U.S. citizen.  Period. This includes Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands.This is true whether you are a citizen or not.

If you become a citizen through naturalization, your existing children can become citizens, a process called derivation, if the following criteria are met:

  • the child has a green card and got it before age 18
  • the child is living in the U.S.
  • the child is living in your legal and physical custody
  • you became a citizen before your child became 18

It doesn’t matter if the other parent is a U.S. citizen or not.

Adopted children can also derive citizenship in this manner.  The child must have been adopted before the age of 16, or be an orphan, and lived with you in your legal custody for at least two years.

But how do you prove your child is a citizen?  Get a Certificate of Citizenship for your child by filing Form N-600 with USCIS.  It will save problems at some point down the road when your child needs to prove that he or she is a U.S. citizen.


Same Sex Couples get Green Cards, Citizenship

by John Polivick, Esq.

Florida is one of a number of states that not only doesn’t recognize same sex marriage, it has a constitutional amendment banning it.  But on June 28th the USCIS put the pedal to the medal in granting green cards to same sex couples – and that first couple lives here in sunny Florida, of all places.  It is now clear that gay persons from any state can obtain a green card if he or she was married in a jurisdiction that has legalized it.

Traian Popov, left, with Julian Marsh, has been approved for a permanent resident visa.

Traian Popov, left, with Julian Marsh, has been approved for a permanent resident visa.

After the Defense of Marriage Act (DOMA) was crushed last week by the Supreme Court, gays across the nation celebrated.  And the the net result is a 180 degree turnaround on immigration policy, which now will grant permanent residence (green card) and eventual citizenship to gay persons who marry U.S. citizens.  Of course they’ll still have to get married in a jurisdiction that allows it, and currently 13 states and the District of Columbia do.  But they can reside in any state, because immigration law is federal law.

This is great news for gay couples and immigration lawyers.  But what about social security benefits for surviving spouses?  No one knows for sure yet, but until something comes out of the white house or congress, SS benefits may only be initially paid in states which recognize same sex marriage.  Some SS experts are saying that once benefits begin, a gay couple could move to a state that doesn’t recognize same sex marriage and continue to receive benefits.

Likewise, joint tax returns may not be available to gay couples in states like Florida that ban gay marriage.   It’s too early to tell just yet, but these issues may shake out fast in the coming weeks, just like the immigration decision on gay couples.

So how long will it take the remaining 37 states to come around?  I think it’s going to be a while, especially here in the south.  It may take another decision by the Supreme Court to get it done.  But most, including this writer, think it’s only a matter of time.  And it’s the right thing to do anyway.  Stay tuned, it’s going to be interesting.

The following is an article from the NY Times on the first gay couple to receive a permanent residency card (green card) in the U.S.

By  Published: June 30, 2013, NYTimes

An American man in Florida and his husband, who is from Bulgaria, have become the first same-sex married couple to be approved for a permanent resident visa, an immigration milestone that comes after the Supreme Court struck down a federal law against same-sex marriage.   Continue reading


By John Polivick, Esq.

With the sweeping decision on DOMA (Defense of Marriage Act) by the Supreme Court on June 26, 2013, gay couples are now entitled to all the immigration benefits heretofore only given to straight couples. Moreover, states that prohibit same sex marriage can’t stop same sex immigration because, as Florida Governor Rick Scott astutely pointed out, immigration law is federal law.

Rainbow Flag

But what’s it all about? Edith Windsor and Thea Spyer wed in Ontario, Canada, in 2007. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses, but was barred from doing so by §3 of the federal Defense of Marriage Act (DOMA) which amended the Dictionary Act—a law providing rules of construction for over 1,000 federal laws and the whole realm of federal regulations—to define “marriage” and “spouse” as excluding same-sex partners

Edith Windsor challenged the law after her partner died and she was forced by the IRS to pay $363,053 in estate taxes. Had her partner/husband been a man, she wouldn’t have had to pay the taxes. The Supreme Court said this violates the equal protection clause of the constitution, and struck down the law. The result is that same sex couples are now entitled to federal benefits, such as immigration visas, green cards, and citizenship.

Currently there are twelve states plus the District of Columbia that specifically recognize gay marriage. And with the Supreme Court decision on proposition 8, California will become the 13th state to recognize same sex marriage. Couples who get married or who plan on getting married in one of those jurisdictions can apply for a visa, and it should be granted.

A K-1 visa is for a fiance, while a K-3 visa is for a person who is already married to a U.S. citizen or permanent resident.  Lately, the USCIS has been issuing  CR-1 (Conditional Resident) or IR-1 (Immediate Relative) visas instead of K-3 visas, and base them on the length of the marriage. For marriages less than 2 years the spouse receives a CR-1 Visa while for marriages two years or longer the IR-1 will be given.

Clearly, now that DOMA is no longer the law of the land, gay couples are entitled to equal rights under all federal law, including federal immigration law. This means that an individual from another country who is legally married to a U.S. citizen or permanent resident is entitled to immigrate under the CR-1, IR-1 or K-3 visa.

Same results for a fiance of a U.S. citizen or permanent resident, who would be entitled to receive a K-1 visa. And the K-1 visa eventually leads to citizenship if so desired. Unmarried children of K visa holders under 21 are also eligible to immigrate to the U.S. with their parent.

For example, a couple gets married in New York, which specifically allows gay marriage. One partner is a U.S. citizen and New York resident, while the other is a citizen of another country, let’s say Canada (or any country for that matter), with a ten year old child. The Canadian citizen is now allowed to immigrate to the U.S. under a visa for spouses of U.S. citizens. And the child is allowed to immigrate with a K-4 visa. Prior to the Supreme Court decision in U.S. vs. Wilson (DOMA), this was not possible. Now it is the law of the land.

But what about a couple who lives in a state such as Texas, which doesn’t allow gay marriage? Could a couple who lives in a state like Texas travel to one of the states that allow gay marriage, such as New York, get married there, go back home and then apply for a visa?

In my legal opinion, yes. There is nothing any state can do to prevent issuance of a visa because immigration law is exclusively federal law. As long as the marriage is legal where it took place, the foreign citizen should be allowed to immigrate to the U.S., regardless of what state he or she will live in. Residency requirements, if any, must be met, and I will discuss that in an upcoming blog.

Of course, these are uncharted waters, and that’s why I use the word “should.” Is it possible that the feds will refuse to issue K visas to people who want to live in those states that do not allow same sex marriage? It’s possible because politics are involved, but in my opinion, highly unlikely. Any such refusal will immediately be challenged in court, and could end up before the U.S. Supreme Court again.

Further, Secretary of Homeland Security Janet Napolitano confirmed that any legally valid marriage of a U.S. citizen would be recognized for immigration benefits. Obama is apparently 100% in support of same sex marriage as well. So, even if you live in Texas, but get married in a state that recognizes same sex marriage, your partner should be able to immigrate to the U.S.

One caveat: Section 2 of DOMA allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 28 U. S. C. §1738C. That section was not challenged in U.S. vs. Wilson and therefore is still law. So if you live in states like Texas, it will not recognize your marriage for the purposes of state, not federal, law.

Accordingly, even if you obtain a visa for yourself or your spouse, you still have to deal with state law as far as it reaches. So if you pass away in a state that doesn’t recognize gay marriage without leaving a valid will, chances are your estate will not pass to your partner. That’s because that state law (such as Texas) doesn’t recognize your spouse, even though federal law does. Of course, you can overcome this by simply having a valid will. And there are other considerations in the state/federal law dichotomy that you must take into consideration if you live in a state that doesn’t recognize same sex marriage.

If you and your partner are interested in U.S. immigration policy, consult with an immigration attorney.

If you want to read the entire decision on the DOMA case, U.S. vs. Wilson, you can find it at


Rubio: Immigration Bill 95% Ready

by John Polivick, Esq.

Sen. Marco Rubio, R-Fla., one of the Senate’s “Gang of Eight,” said Sunday that the comprehensive immigration reform bill is almost what it needs to be to win congressional approval.
Rubio said on ABC’s This Week that the proposed legislation needs stronger border security measures to ensure passing in the House.

“I think it’s an excellent starting point, and I think 95, 96 percent of the bill is in perfect shape and ready to go,” he said. “But there are elements that need to be improved.”

Continue reading

Non Immigrants Get Florida Drivers License Despite Scott Veto

by John Polivick, Esq.


It would have been the right thing to do for Florida governor Rick Scott to sign into law a bill that was approved by 98.7% of the Florida legislature.  The bill would give DACA children at least a temporary Florida drivers license.  Indeed, of the 151 votes cast in the House and Senate, only 2 voted against it (the legislators who introduced the bill promised to bring it up again…perhaps a new governor will approve it by then).  It would have given drivers licenses to the DACA children, also known as the dreamers.  But despite the idiotic, inexplicable veto of the bill by Scott, it turns out that non immigrants can still get a Florida Drivers License anyway.  It requires that one obtain a federal Employment Authorization Document (EAD), more commonly known as a work permit.  If you or someone you know fits into this category, you may want to look into it.


The following is from the Florida Department of Motor Vehicles website:

Non Immigrants that apply for a Florida drivers license or ID card must provide the Proof of Social Security Number and 2 Proofs of Residential address desribed above.
As a Non Immigrant you must provide one original or certified copy of the following Identification documents:

  • Employment authorization card issued by the United States Department of Homeland Security (Form I688B or I-766); or
  • Proof of nonimmigrant classification provided by United States Department of Homeland Security (Form I-94, not expired, with required supporting attachment(s).

If in doubt regarding required documents, please bring all of your US BCIS documentation with you.). I-94s must be accompanied by a Passport. Certain classifications require additional documentation. Some examples are:
F-1 and M-1 classification must also be accompanied by an I-20.
I J-1 or J-2 designation must be accompanied by an DS2019.
Refugee, asylee and parolee classifications must be accompanied by additional documentation.

  • I-571 Travel Document/Refugee Travel Permit**
  • I-512 Parole Letter Accepted**
  • IJO- Asylum or Cancellation of Removal – Immigration Judges Order granting Asylum or Cancellation of Removal.**

** These documents will only be accepted with a supporting document, including but not limited to a Passport, Florida Driver License or Identification Card, Driver License from any other state, Employment Authorization Card, Employer Identification, Identification from home country, Identification from school or college, Social Security Card (Chapter 322, Florida Statutes, requires the Department to see proof of social security number for the issuance of driver license and identification cards) or other US BCIS document.

All required and supporting documents MUST be original or certified.
Documents must be valid for more than 30 days from the date of issuance.
Non-U.S. citizens applying for an original driver license will be issued a 30-day, no photo, paper temporary permit and a receipt. Non-U.S. citizens applying for an identification card will be issued a receipt.
All records are transmitted to our database in Tallahassee, where the information will be examined and run against FDLE, FBI and US BCIS databases.
Upon identity and legal status verification, a driver license or identification card will be issued within 30 days from Tallahassee, mailed to the address on the driver record. The license or identification card will be issued for the period of time specified on the US BCIS document, up to a maximum of one year.
If a problem is detected, a denial of issuance letter will be mailed to the customer.

Rick Scott Vetoes Dream Act Drivers License – this truly is Flori-DUH !!!

by John Polivick, Esq.

Just when yorick-scottu thought our unpopular governor here in Florida couldn’t outdo himself, he did.  On Tuesday, June 5, 2013, Rick Scott vetoed a bill that would have given temporary drivers licenses to the the DACA children (Deferred Action for Childhood Arrivals).  The bill passed the Florida Senate 36-0, and the house 115-2.  This bill dealt with children who came to the U.S. before their 16th birthdays, but Mr. Scott feels it’s ok to punish them.  I had to read the article several times in order to follow his logic.  But I still don’t.  If this guy really wants to be re-elected governor again, he is doing all the wrong things.  And he just riled the feathers of another large group of resident DACA children, as well as their friends, families and associates.  Looks like Charlie Christ will have a cake walk in the 2014 election, unless Senator Nelson decides to run for governor as well, and he says he won’t.

Read the article in the Tampa Bay Times reprinted in full below:

TALLAHASSEE — Gov. Rick Scott on Tuesday vetoed a bill that would have allowed children of illegal immigrants to get temporary Florida driver’s licenses, a decision that may bolster his standing among immigration hard-liners but could hurt him among Hispanic voters.

The vetoed measure, informally known to supporters as the “Dream Act Driver License” law, passed the Legislature by a nearly unanimous vote. It would have applied to young people covered by President Barack Obama’s 2012 policy affecting noncitizens brought to the U.S. illegally as children, which suspended any deportation action against them for a two-year period.

Continue reading

Lindsey Graham says the GOP is gonna be “Toast.” Who am I to disagree?

Lindsey Graham

by John Polivick, Esq.

You know, I’m starting to like old Lindsey.  First, he has the sense to see the handwriting on the wall in the form of a landslide hispanic vote – for the opposing party.  Then he joins up with the gang of eight to finally reform immigration law, the one smart thing Bush tried to do but failed (if only he had such luck starting wars).  And now that some of the other chefs in the kitchen are messing with the recipe, Lindsey is telling them they’re gonna be burnt toast in the next election.  Who am I to disagree.  Read the article from NBC reprinted below:

By Carrie Dann, Political Reporter, NBC News

Four opponents of the Gang of Eight immigration bill are keeping up their pressure as the full Senate prepares to consider the legislation next week, telling colleagues in a letter Tuesday that the bill “will leave our borders unsecure and our immigration system deeply dysfunctional.”    Continue reading