DOMICILE REQUIREMENTS FOR VISA PETITIONER/SPONSOR
As a U.S. citizen living in Japan, I want to help my Japanese spouse get a green card while we're in Japan. Do I need to maintain certain ties to the United States?
If you are filing a Form I-130 (Petition for Alien Relative), you will typically need to complete a Form I-864 (Affidavit of Support) so that your spouse would rely on sponsors, instead of the U.S. government, if financial support were ever needed.
As a petitioner, you must satisfy the I-864 sponsor requirement of a U.S. domicile, even if you wish to use a joint sponsor to satisfy the sponsor income requirement. To meet this domicile requirement while you're living in Japan, you might need to show how you're domiciled in the U.S. while you're temporarily abroad. Alternatively, you might need to reestablish your U.S. domicile by the time your spouse reaches the U.S.
For guidance on how to satisfy the domicile requirement for your particular case, contact us to arrange a free initial consultation.
VISA WAIVER PROGRAM AND MISREPRESENTATION
I'm Japanese and I want to move to the U.S. as soon as possible. If Japanese people can use the Visa Waiver Program (VWP) and the Electronic System for Travel Authorization (ESTA) to travel to the United States, why can’t I go to the U.S. now and try to get a green card while I'm there?
The VWP allows certain people to travel to the U.S. for tourism or business activities for up to 90 days without a visa. However, the VWP is not for people who have plans that extend beyond this limited 90-day period (e.g., remaining in the U.S., changing from the visa waiver status, etc.). If your particular circumstances, travel purpose, or plans do not satisfy the requirements of the VWP, you'll need to determine if there's a visa type that is appropriate for you.
Also, people who use the VWP or apply for a visa should not provide false information. A finding of fraud or misrepresentation may result in your losing any chance of legally immigrating to the U.S.
FIANCE(E) VISA VS. SPOUSE VISA
We're an international couple (American/Japanese) and we want to move to the U.S. Would it be better to get a fiancé(e) visa (K-1) or a spouse visa (CR1)?
There will be pros and cons for each visa type, depending on your circumstances.
For example, a K-1 may help the Japanese fiancé(e) get to the U.S. faster, but it may cost more, and the ability to work and travel may be limited while applying for a green card. If you get married in Japan and pursue a CR1, the Japanese spouse may have to wait longer before travelling to the U.S., but it may cost less, and the Japanese spouse should arrive in the U.S. as a lawful permanent resident.
Depending on the financial profiles involved, it might be worth considering the lower minimum income guidelines for K-1 sponsors, and the CR1 sponsor’s ability to use a joint sponsor. A K-1 couple will need evidence of a valid fiancé(e) relationship, and a CR1 couple will need to show that the marriage was entered into in good faith.
Couples should not provide false information about a relationship. A finding of fraud or misrepresentation may result in your losing any chance for any immigration benefit.
RESPONSIBILITIES OF GREEN CARD HOLDERS
My Japanese spouse has a U.S. green card and is keeping it while we are living here in Japan. Is this ok?
People with green cards (i.e., permanent residents) are allowed to live and work in the United States on a permanent basis. Green card holders have certain rights and responsibilities.
Abandonment of permanent resident status might occur if your spouse does not intend to make the United States their permanent home. Temporary or brief trips to Japan are typically fine, but when your spouse arrives back at a port of entry, a U.S. Customs and Border Protection (CBP) officer may consider certain factors (e.g., how long your spouse was outside the U.S., whether your spouse maintained ties to the U.S., etc.) to determine if abandonment has occurred.
Your spouse can apply for a re-entry permit (Form I-131, Application for Travel Document) to help indicate an intent to remain a permanent resident, but there is no guarantee that a U.S. officer will allow your spouse to enter upon return to the U.S.
At GOH Foreign Law Office, we can help Japanese green card holders understand the applicable requirements and identify compliance concerns. Contact us today for more information.
WORKING WHILE ON A STUDENT VISA
I was studying in the U.S. on a student visa, and it seemed like several of my classmates were working in their free time. Is this legal?
The F-1 visa (academic students) and M-1 visa (vocational students) are for people enrolled full time at approved institutions in the U.S. There are specific requirements for on-campus employment, off-campus employment, curricular practical training (CPT), optional practical training (OPT), etc.
The rules for what kind of work you can do and when you can do it depend on whether you are an F-1 or M-1 student. Students who wish to work while in the U.S. should consult with their school's officials beforehand to ensure that their plans are acceptable.
PASSPORTS AND DUAL NATIONALITY
We're an international married couple (American/Japanese) and we have made our home in Japan with our young kids who were born in Japan. Can we just use their Japanese passports when we visit the United States?
A U.S. citizen is required to show a U.S. passport when entering and leaving the U.S. So, for trips between Japan and the U.S., a dual national child should carry a U.S. passport to show U.S. immigration officials, and a Japanese passport to show Japanese immigration officials.
For assistance with a Consular Report of Birth Application (DS-2029), Passport Application (DS-11), or Social Security Number Application (SS-5), contact us for assistance or check out the website of the U.S. Consulate for Osaka/Kobe.
CITIZENSHIP AND TAX OBLIGATIONS
We're an international married couple (American/Japanese) and we have made our home in Japan. If we report all our income to the Japanese government, aren’t we satisfying our tax obligations?
The worldwide income of U.S. citizens is typically subject to U.S. income tax regardless of where the U.S. citizen is living. If you are in Japan, there are automatic and discretionary extensions of filing deadlines, and there are various tax provisions that combine to allow many expatriates to owe nothing to the U.S.
TRANSLATIONS OF VITAL RECORDS
How can I obtain a 'certified' translation of my Japanese birth or marriage certificate?
You can typically satisfy the “certified” translation requirement without paying for a professional translator. Anyone bilingual in Japanese and English should be sufficient. At the bottom of the English page, the translator should insert a sentence certifying that they are competent in Japanese and English, and that the above document is an accurate translation of the particular vital record. The translator should provide their name, signature, date, and address.
Out of an abundance of caution, to avoid scrutiny or conflicts of interest, some people may prefer the translation services of an independent and objective third party other than the petitioner, applicant, beneficiary, employer, attorney, etc., but this is not always necessary.
Also, before paying for notarizations or submitting original documents based on what you read on an internet discussion board or general immigration website, you should review the website of the U.S. Embassy & Consulates in Japan, or check with a U.S. immigration attorney. For example, a non-government site might describe how translated documents must be notarized when you are submitting them to the U.S. Embassy or Consulate, but the U.S. Embassy in Tokyo might not have this specific requirement.
HIRING AN IMMIGRATION LAWYER
We're an international couple (American/Japanese) living in Japan and I want to get a green card for my Japanese spouse so we can live in the United States. Our situation seems straightforward and we have friends who didn’t use a lawyer. Is it really necessary to hire an immigration attorney?
There's no requirement that you pay someone to assist you with your immigration matter. However, sometimes professional assistance can provide benefits, including peace of mind, that are worth the cost.
For example, some people hire an accountant to help with tax returns, or a plumber when faced with leaky pipes, and other people view these as “do-it-yourself” projects. You may find value in consulting with a person who has passed a licensing exam, who has analyzed the applicable laws, who has worked with the immigration forms, and who has enjoyed helping other clients with the immigration process.
For more on the value of hiring an immigration attorney, take a look at Douglas Halpert’s Tales of an Unnecessary Lawyer article.
Additionally, whether your friends hired a lawyer or avoided complications in their case can be helpful to know, but shouldn't be given too much weight when making decisions about your specific situation. Cases may appear to be straightforward or similar, but sometimes facts that seem insignificant can change the complexity of a case and affect your petition/application process.
SELECTING AN IMMIGRATION LAWYER
If your opinion is that we don't qualify for the immigration benefits we seek and you won’t accept our case, why is this other person willing to help us file our immigration forms for a fee?
We can't say why another person is willing to help you with a case we won't accept. It's possible that we missed something or they are missing something.
As a U.S. immigration attorney admitted in California and Japan (a licensed foreign attorney), Gary O. Haase is subject to a variety of rules that govern attorney conduct (e.g., the state rules of California, the federal rules of the United States, the rules of Japan, etc.).
Gary has a duty of competence to know the law and has taken an oath to uphold the law. He owes clients a duty of loyalty to put their interests before his own and is prohibited from preparing frivolous applications. Therefore, we're not going to accept a case or fee if Gary is unable to make a good-faith argument that a prospective client qualifies for the immigration benefit they are seeking.
Not everyone is a licensed attorney, and many licensed attorneys focus on areas other than U.S. immigration and nationality law. When deciding who you should hire, you can ask candidates if they have a law license, if they are required to complete continuing legal education (CLE) classes to maintain their license, and how many credit hours they have earned in the area of U.S. immigration law.
Being a member of the American Immigration Lawyers Association (AILA) is one way that immigration lawyers can remain current on the latest developments in U.S. immigration law. AILA membership does not guarantee that a lawyer is competent to handle your matter, but it may be an indication that the lawyer has access to up-to-date resources. For more about finding an immigration lawyer, check out Why Choose an AILA Lawyer? on the AILA Immigration Lawyer Search site.