In order to "accompany," a derivative with the requisite relationship must be: (1) in the physical company of the principal, and (2) applying within 6 months of the issuance of the visa, the adjustment of status, or the consular application of the principal. 22 CFR 40.1(a)(1). Notably, an "accompanying" relative cannot have arrived in the US before the principal.

In contrast, "follow to join" has basically no requirements beyond the requisite relationship. There is no time limit and no physical company requirement. It is not explicitly stated if they can precede the principal to the US, but given that it's explicitly addressed in the "accompany" definition, there's a strong argument that if USCIS wanted it to be a bar, they would have said so. 9 FAM 502.1-1(C)(2). Of note, the Dept of State's policy manual is called the Foreign Affairs Manual aka FAM.

Notably, the USCIS Policy Manual doesn't mention the physical company requirement: "“Accompany” and “follow to join” are terms of art and not defined within the INA. DOS generally considers the derivative spouse or child to be accompanying the principal when issued an immigrant visa or adjusting status within six months of the date DOS issues a visa to the principal or the date the principal adjusts status in the United States. USCIS Policy Manual Chapter 6 Section C.6. In contrast, there is no specific time period during which a derivative must follow to join the principal." Id.

Because "follow to join" has many fewer requirements, this likely explains why some of the nonimmigrant visas don't allow it.

Sources & Links:

• https://www.ecfr.gov/current/title-22/chapter-I/subchapter-E/part-40/subpart-A/section-40.1
• https://fam.state.gov/FAM/09FAM/09FAM050201.html
• https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-6#footnote-38
• https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-6#footnote-39

Additional explanation here: https://www.immigrationdirect.com/blog/find-out-more/follow-to-join-what-it-is-and-who-qualifies/

1. Robb is the brother of a U.S. citizen (USC). Robb has a wife and six-year-old son.
   
   
   • Can Robb immigrate through a family petition? If so, which one?
     
     
   • Does Robb have a “spouse” or “child” under the INA?
     
     
2. Sansa is the daughter of a U.S. citizen. Sansa has a husband, a married nineteen-year-old son, and an unmarried twenty-one-year-old son.
   
   
   • Can Sansa immigrate through a family petition? If so, which one?
     
     
   • Does Sansa have a spouse or child under the INA?
     
     
3. Arya is the wife of a lawful permanent resident (LPR). Arya has a three-year-old daughter from a previous marriage.
   
   
   • Can Arya immigrate through a family petition? If so, which one? Is there another (reasonable) way that Arya could immigrate?
     
     
   • Does Arya have a child who can immigrate with her?
     
     
4. Bran is the unmarried twenty-year-old son of a U.S. citizen. Bran has a baby girl.
   
   
   • Can Bran immigrate through a family petition? If so, which one?
     
     
   • Does Bran have a child who can immigrate with him?
     
     
5. Rickon has just become a U.S. citizen. Rickon wants to petition for his parents, but his mother is concerned about leaving Rickon’s sixteen-year-old brother, Jon, behind.
   
   
   • How can the family help Jon immigrate? 

Your client, Nora, was granted asylum a little over a year ago. Can she apply for adjustment of status now? If yes, what is the USCIS processing time for an I-485 application to adjust status based on an asylum grant of more than one year through the Nebraska Service Center? 

2020 Exam, Question #1 (40 minutes)
(Pulp Fiction) 

JULY 2020 VISA BULLETIN

Jules is a 25-year-old U.S. Citizen. His brother, Vincent, is on a student visa, as is Vincent’s wife, Mia. Vincent and Mia are both 20 years old and natives and citizens of New Zealand. Mia’s parents, Butch and Fabienne, are both still alive. They are also natives and citizens of New Zealand.

Fabienne’s father and Mia’s grandfather, Marsellus, is an activist in New Zealand and has achieved a lot of the changes he wants in that nation. He is also a native and citizen of New Zealand. He wants similar changes in the U.S. and, thus, wants to vote in our elections.

Assume everyone in the family is willing to go through the immigration process in the U.S. to help Marsellus achieve his dream.

• In what year, approximately, would Marsellus become a U.S. Citizen? You can focus exclusively on the fastest path to citizenship, rather than multiple potential paths. What election would he likely be able to vote in as a U.S. Citizen?

2021 EXAM, QUESTION #1 (40 minutes)
(Weekend)

Russell has been an LPR for 10 years.  Russell recently married his boyfriend and partner, Glen.  Glen’s brother, Damien, is a single father.  Damien has one child, Jill, his daughter who is 5 years old.  Russell, Glen, Damien, and Jill are all citizens of India.

AUGUST 2021 VISA BULLETIN
(this is the current version on travel.state.gov)

Assuming no inadmissibility issues, how and when can Glen, Damien, and Jill immigrate to the U.S. through family-based immigration?  Only list the one fastest way for each person to immigrate, rather than listing every possible way for each person.

CSPA IN-CLASS EXERCISE
(THE SOPRANOS)

Example 1:

Tony is a USC. His daughter, Meadow, is not. Meadow is 20 years and 11 months old. She is an Italian citizen.

• What would be filed? What form or forms?
• What’s the processing time for this? Where (which service center) would this be filed?
• Will Meadow “age out”?

Example 2: 

Let’s change the facts a bit. Tony is an LPR, and he marries Carmela who is an Italian citizen. Carmela has a son, AJ, who is 20 years old and 6 months. AJ is an Italian citizen.

• What would be filed? What form or forms?
• What is the wait time for the visa? Separately, what is processing time looking for this?
• Will AJ “age out”?

Example 3:

FYI: If a parent who is an LPR (with a green card) files an I-130 visa petition for a child under the family-based 2A category (children of LPRs) and then naturalizes before the child’s 21st birthday, the child’s age will be frozen on the date that the parent naturalizes. The child might also be a derivative citizen automatically if the naturalization happened before the child’s 18th birthday.

Focus specifically on § 101(b)(1)(A)-(D) and 101(b)(2).

Angela, your client, is a conditional permanent residence. She has questions she is hoping to have answered. Please find the answer, cite the source, and let me know in a sentence or two how you found the answer.

1. What is a conditional permanent residence? What does it require? Where is this requirement found in the INA?  

2. Can conditional permanent residents file family-based petitions for others before the restrictions on their green card are removed? 

3. Do conditional permanent residents accrue time towards their ability to naturalize during their conditional period, i.e. apply for citizenship?

Facts: 

Antoine is an affirmative asylum seeker from France. While waiting many years for his asylum interview with USCIS, he meets Desiree and falls in love. They marry on December 1, 2021. 

On February 1, 2022, Desiree, who is a US Citizen, files an immediate relative petition on Antoine’s behalf (I-130). As allowed by USCIS policy, Antoine simultaneously files his adjustment of status application (I-485). 

After a few months of waiting, the married couple receive an interview on May 1, 2022. On that date, both the petition and application are granted. 

Questions:

• What kind of permanent resident card does Antoine receive? If there are any restrictions, when can he apply to have the conditions removed? Please give me an exact date or date range. What is the name of the form to have the conditions removed? Hint: it starts I-____.
  
  
• What happens if Antoine and Desiree separate a few months before the conditions can be removed? Can Antoine file to remove the conditions alone, i.e. receive a waiver? Let's assume for purposes of this fact pattern that he cannot show that he was abused/battered. 

STATION 11
FRAUD STATUTES
IN-CLASS EXERCISE

These are two poorly written provisions. Your supervisor, Jeevan, wants you to simplify them by writing them out for his understanding. One way to deal with a complicated and poorly written statute is to simplify / write it better on your own, which often helps with understanding it. That’s a smarter way to approach it than to read it over and over. Let’s try that in class, and then see if that helps with understanding the purpose and meaning of the statutes.  

INA 204(a)(2)(a) states: “The Attorney General may not approve a spousal second preference petition for the classification of the spouse of an alien if the alien, by virtue of a prior marriage, has been accorded the status of an alien lawfully admitted for permanent residence as the spouse of a citizen of the United States or as the spouse of an alien lawfully admitted for permanent residence, unless (i) a period of 5 years has elapsed after the date the alien acquired the status of an alien lawfully admitted for permanent residence, or (ii) the alien establishes to the satisfaction of the Attorney General by clear and convincing evidence that the prior marriage (on the basis of which the alien obtained the status of an alien lawfully admitted for permanent residence) was not entered into for the purpose of evading any provision of the immigration laws.”

INA 204(c) states: “Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws."

2018 Exam, Question #3 (30 minutes)

(Star Wars)

Facts: Use the Visa Bulletin below from May 2018 for this question. Anakin is a citizen of Mexico and just married Padme, a legal permanent resident (“LPR”). Padme has been an LPR for just over one year. Anakin also has a son, Luke, who is 22 years old [not Padme’s child] who Anakin would like to help immigrate to the United States. For this question, assume there are no inadmissibility issues for Anakin or Luke.

• Question: Assuming no inadmissibility issues, when can Anakin likely immigrate? When can Luke likely immigrate?

2019 Exam, Question #1 (39 minutes)
(Eternal Sunshine)

Clementine is a 45-year-old citizen of the U.S.  Joel is a 40-year-old citizen of New Zealand.  Joel has a 10-year-old daughter, Mary, from a previous marriage.  Mary is also a citizen of New Zealand.  All of them live outside the country.  Clementine and Joel married 3 years ago.

• Questions: What is the fastest way for Joel to become a U.S. citizen?  What is the fastest way for Mary to become a U.S. citizen?  How long will it take and why?

LGBTQ+ Immigration Organizations:

• Lambda Legal
  • https://www.lambdalegal.org/issues/immigration
  • We fight for humane immigration reform that is inclusive of LGBT people, raise awareness about the experiences and legal needs of LGBT immigrant communities and oppose immigration enforcement that deprives LGBT immigrants of dignity and justice. Lambda Legal will continue to represent LGBT immigrants fleeing persecution in their home countries; to challenge the abuse and sexual assault of LGBT and immigrants living with HIV in detention; and to educate diverse LGBT immigrant communities about their rights.
  • Along with Lambda Legal, these organizations offer education and advocacy specific to transgender immigrants.
    
    
• ACLU Immigrants’ Rights Project
  • Dedicated to expanding and enforcing the civil liberties and civil rights of non-citizens and to combating public and private discrimination against immigrants.
  • (212-549-2500)
    
    
• * Immigration Equality (New York, NY)
  • * Se habla español.
    • Works to ensure immigration rights for lesbian, gay, bisexual and transgender people and those living with HIV.
  • (212-714-2904)
    
    
• * Mariposas Sin Fronteras (Tucson, AZ)
  • * Se habla español.
  • Supporting LGBTQ people in immigration detention.
    
    
• National Center for Lesbian Rights Immigration Project (San Francisco, CA And Washington, DC)
  • Advocates in court for LGBT asylum seekers and immigrants.
  • (1-800-528-6257)
    
    
• National Center for Transgender Equality (Washington, DC)
  • Social justice organization devoted to ending discrimination and violence against transgender people.
  • (202-903-0112)
    
    
• * National Immigrant Justice Center (Chicago, IL)
  • * Se habla español.
  • Fights for human rights protections and access to justice for all immigrants, refugees and asylum seekers.
  • (312-660-1370)
    
    
• Queer Detainee Empowerment Project (New York, NY)
  • An alternative to detention programs for queer/trans/HIV-positive immigrant detainees, undocumented folks and asylum seekers and their families.
  • (347.645.9339)
    
    
• Queer Undocumented Immigrant Project (Washington, DC)
  • Organizes and empowers LGBTQ-identified undocumented people, LGBTQ immigrant youth and allies. 
    
    
• Sylvia Rivera Law Project (New York, NY)
  • Advocates for self-determination of gender identity and expression.
  • (212-337-8550 extension 308)
    
    
• * Transgender Law Center (San Francisco, CA)
  • * Se habla español.
  • Works to change discriminatory laws, policies and social attitudes.
  • (415-865-0176)
    
    
• Transgender Legal Defense & Education Fund (New York, NY)
  • Committed to ending anti-transgender discrimination through impact litigation, public education and direct legal services.
  • (646-862-9396)