Monday, November 29, 2010

K-1 Visa -marry the USC petitioner or go back

How can someone come here on K-1 visa and not marry the U. S. Citizen who sponsored him or her? Wrong question, I guess. In ever fluid relationships among human beings, anything can happen, I suppose. Let me not get carried away restrict myself to the legal side of things.

K-1 visa is a finance visa issued to fiances of USC (United States Citizen). Immigration Service known as USCIS allowed this petition so that the fiances can enter the U. S. sooner to be united with their spouses and resume family relationship. After entry into the U. S., fiance and U. S. citizen have to marry within ninety (90) days though.

If the fiance who entered on K-1 visa does not marry the U. S. citizen within ninety (90) days, then such fiance has to return to the home country.

In a recent case, Kalal v. Gonzalez, Case number 03-71354, Ninth Circuit Court of Appeals, addressed and rejected a number of arguments by Mrs. Kalal who had entered into the U. S. under K-1 visa but did not marry her U. S. Citizen fiance. The court held that Petitioner, who entered the U.S. on a K-1 visa but failed to marry the petitioning fiancĂ© was not eligible for adjustment of status under INA §245.

Mrs. Kalal had made several strong arguments based on caselaw and written statutes (aka law). However, the court rejected them for the simple reason: the Congress passed the law and contemplated the possibility of fiance not marrying the U. S. citizen and did not allow such fiance to obtain permanent resident status by way of marrying someone else.

So, it is important to remember this law and to make sure that either you marry the U. S. citizen fiance who sponsored you or you return to the home country and then obtain new visa, immigrant or non-immigrant, based on new, or shall I say different, relationship.

It is ironic for me to note that Mrs. Kalal had entered the U. S. in June 1996 and her conditional status was denied in 2001. Immigration had made a mistake in issuing her permanent resident status in the first place. However, when she filed a petition to remove conditional status, all the problems started, leading to being placed in removal proceedings and final removal order. The decision by Ninth Circuit Court of Appeals came out recently. So it took a total of fifteen years or so for final the resolution. She can file an appeal with the Supreme Court but it will be a far fetched shot. I am not an expert in Supreme Court Appeals but know that it is pretty high legal criteria and standard.

I am sure a lot has changed since 1996 for her. She must have started a family. But nothing matters-anymore!! A simple decision has played such a havoc in her life. She should have sought and received the right advise at the time and returned to home country and then filed for permanent resident status there. Perhaps she did get the right advise and did not want to return to the home country. Only she knows what happened.

I know that most immigrants engage in following two behaviors- ask family and friend who advise based on their limited experience and 2ndly, they don't want to believe the tough advise. I hate to generalize but these two behaviors are very basic human behaviors. So, I am just stating the facts.

I think her attorney Bart Klein did a pretty good job in making arguments for her.

So, remember that sometimes tough choices in the begining might be good for the long run!!

Saturday, November 27, 2010

Qualifications for Chapter 13 Bankruptcy

In order to be eligible for Chapter 13, basic qualifications are:

1) Income and expense test has to be met under what is known as Means Test,

2) Before filing complete the Credit Counseling for Consumers Class. Another class has to be taken after filing and before the discharge,

(3) Have sufficient regular income to meet monthly living expenses allowed by the Chapter 13 Trustee as allowed by the IRS and make a plan payment. If income does not justify or support the Reorganization plan, then trustee will object and the court will not allow confirmation of plan and also not allow BK to proceed,

(4) Have less than $307,675 of unsecured debt, and less than $922,975 of secured debt.(as of April 1, 2004), and

5) Not be a corporation, partnership, stockbroker, or commodity broker.

Thursday, November 25, 2010

Loan Modification or Bankruptcy

Loan Modification is the process of changing the loan program which a borrower has. It is a modification of loan contract between the lender and the borrower. It is not a right so to speak. It is really lender’s discretion.

Lenders provide no written acknowledgment of loan modification. Borrowers submit written application and documents to support loan modification. However, follow up and discussions are always verbal. I would argue that it creates an oral contract. It creates a detrimental reliance, at the very least. The situation does create a legal problem. Short of legal dispute, and obtaining records through legal methods in lawsuit, there is no evidence of loan modification.

Lenders also schedule Trustee Sale or Foreclosure date routinely and regularly through loan modification process and continually postpone the sale date in it’s’ discretion while loan modification is pending. Lender does not have to provide written notice of foreclosure date after initial (or very first) notice under the law.

Borrower, in the process of loan modification, should not take it granted that foreclosure shall be postponed again because it has been postponed once before, or many times. Keep in touch with the lender and make sure to be aware of Trustee Sale date and request postponement or you might lose your house. I know of many situations where the lender conducted the foreclosure while borrowers awaited a decision on loan modification.

If you are in such a situation where lender won’t postpone the Trustee Sale date and your income has gone down making it doubtful to begin with and your liabilities are increasing, filing bankruptcy might be a good option. Filing bankruptcy especially Chapter 13 can serve following important functions:

1. It can stay (and postpone) the Trustee Sale. Bankruptcy provides automatic stay for 120 days.

2. It can assist you wipe out consumer debts which decreases your total liability enabling you to be perhaps more eligible for loan modification. Not all lenders offer loan modification to debtors in bankruptcy or post bankruptcy though.

3. Filing Chapter 13 bankruptcy, if qualified, can help you wipe out second mortgage or lower the value of first, if the house value has gone down. Law offers such benefit through a provision called Lien Stripping. Chapter 506 of the Bankruptcy Code provides such benefit. A lien is as good as the value of the collateral. If value has gone down, then the lien is stripped to match the value of the collateral.

4. Bankruptcy allows you to pay the delinquent amount over a period of 3-5 years, depending upon the Chapter 13 Plan.

5. Buy piece of mind and start over.

So, filing Bankruptcy especially Chapter 13 might not be a bad idea specifically where you might not qualify for loan modification at all and face foreclosure. One has to qualify to be able to file for Bankruptcy. So, contact a local bankruptcy lawyer today.