How Long Does It Take to Receive a Green Card Through Marriage?

By Peek & Toland on October 21, 2020

There is a common misconception that marrying a U.S. citizen is an easy and fast process. Unfortunately, that is not the case. In the video below, attorney Jeff Peek talks about how long it actually takes to adjust your status inside the U.S. or apply for a green card outside the U.S.

Many have heard through friends or family that if you marry a U.S. citizen, that it’s an easy path to becoming a permanent resident. While that can be true, and certainly marrying a U.S. citizen does provide an opportunity, you have to have several eligibility factors available to you. But the bigger question is, how long is that going to take?

There’s no expedited fee for adjustment of status or for applying for a green card outside the U.S. What we’ve seen is that the process inside the United States is usually the best, as far as time and ease. However, it can still take up to 10-11 months to receive a green card. While you wait, you will obtain a work permit and a travel permit, if you paid for one, which can also take 4-5 months to receive.

On the other side, if you’re going to try to do things outside the U.S., the process is even longer. It can take up to a year to receive a green card.

Other people might think that getting a fiancé visa would be faster as well. Think again. Even that has a lengthy process time. Right now, the wait time can be over a year.

Our point is don’t assume that just because you have a U.S. citizen fiancé and getting married, it will be an easy and quick process. It’s not.

Now, there are some tricks of the trade. There are little things you can do to speed up or make yourself eligible for different processes. Which we recommend you reach out to an attorney so they can further explain to you those options.

We want to note that don’t assume that because you have a visa, you can leave the United States, get married to a U.S. citizen outside, come back in with that visa, and later on change your status. That assumption can lead to problems down the road.

Every time you come into the U.S. the officers will look at your intent. Meaning what was your intention of coming to the United States when you came in, even though you already have this approved visa. If they find out you married a U.S. citizen then left on a tourist visa, came back in on a tourist visa, and then tried to adjust status, it can lead to a denial. Likewise, if you were here on a work visa, went outside the U.S., married a U.S. citizen, and came back in on your work visa, even though you married a U.s. citizen, it can be an issue. If you cannot convince them that your intention when you came into the U.S. was temporary and plan on leaving again to go back to your home country, they can deny you, saying you knew you would adjust status coming into the country.

Therefore, you have to be very careful about how you plan trips, plan your wedding if it’s going to be outside of the U.S., and don’t assume things. Timing is crucial, so talk to a lawyer quickly if you have any inkling that you might want to get married.

Applying for an adjustment of status or a green card can be a very stressful process. Just getting married has its stresses, don’t add to it by making mistakes of not planning or getting competent immigration advice from a seasoned immigration expert.

If you are getting married and want to adjust status, we’d love to help you, or if you have an immigration question, please don’t hesitate to reach out to us at 512-474-4445.

5 Things to Remember When Drinking Alcohol & Boating | Alcohol-Related Offense & Boating Part 2

By Peek & Toland on October 16, 2020

We continue our discussion about alcohol and boating. 

Attorney Steve Toland shares five important things to remember when it comes to alcohol and boating. Any time you mix those two together, it comes with a lot of responsibility. Therefore, it’s essential to know the following.

1. Law enforcement can investigate you for BWI if you’re on a boat.

A boat is defined in Texas as a vessel, which is any device that carries one or more people over the water that’s propelled by something other than the ocean currents. 

2. There are broad discretionary powers by law enforcement to pull you over

It’s different than driving a motor vehicle. For boating, there is a broad warrantless exception called the safety check or safety exception. It means that law enforcement can come on your boat and ask you about fire extinguishers, life jackets, and things like that. You need to expect that when you’re out on the water, law enforcement at any point could stop you and ask about the alcohol on board. Nonetheless, you should consult an attorney if you have questions about that, but that’s the general rule to keep in mind.

3. The legal definition of intoxication on a boat, it’s the same as driving. 

Like driving the blood alcohol content, it’s 0.08, or the loss of your mental or physical faculties due to the introduction of alcohol or drugs in your system. 

4. Many cases result in a false arrest. 

That is because the signs of impairment for intoxication are substantially similar to the signs people exhibit when they’ve been out on a boat all day. If you think about it, bloodshot, glassy eyes due to the wind, a raspy horsey voice from being out on the water, wobbly sea legs, and then all these things are hard to distinguish between somebody who’s had too much to drink and somebody who’s been on a boat all day. Our advice is always to consult an attorney if you have been wrongfully arrested. 

5. You and the passengers are allowed to drink alcohol. 

You are allowed to drink alcohol on the boat, which is different from a motor vehicle. So, if you’re driving the boat and you’re the captain, you can have an open container, and that’s not against the law. Nevertheless, you can’t be intoxicated. And likewise other people on your boat, your passengers, they can also drink alcohol. Again, they’re allowed to do that, unlike a motor vehicle. 

These are five important things to remember about BWIs. In our last video of the series, we’re going to talk about the penalty ranges and defenses available to you for these types of arrests or charges. 

If you have any questions in this area, you or a loved one have been facing a charge of BWI, alcohol, and boating. Reach out to us. We’re glad to help. 

Can I divorce, remarry, and request residency for my future spouse?

By Peek & Toland on October 14, 2020

What if you gain permanent residence through marriage but decide to divorce and now want to remarry and want to file residency for someone else? Is it a fraud?

Attorney Jeff Peeks answers this question and talks about a specific immigration law provision about this situation and the penalties that can occur if a marriage is fraudulent.

First and foremost, it’s important to note that immigration and the federal government take immigration marriage fraud seriously. It is punishable by a federal felony. You can get time in prison, a hefty fine, and deportation.

Every immigration case is different, but I’ve seen on more than one occasion and where we have a client who received their permanent residency through marriage of a U.S. citizen. After a few years, they want to get a divorce and get remarried and file for their new spouse. It might sound fishy, but first, we have to ask, is it even possible to do that?

There is a specific provision in immigration law which specifically points this out. It says if you are a permanent resident holder and received your residency through marriage, but then you divorce the previous U.S. citizen or resident, and then turn around and want to file for somebody else? Well, that provision states that you cannot do that unless you’ve had your LPR card, residency, for more than five years.

Now, if you cannot wait for those five years, there’s another option where you can show by clear and convincing evidence that the previous marriage was not under the purpose of evading immigration laws.

Can the Police Pull You Over While Boating?

By Peek & Toland on October 9, 2020

Here in Texas, we are lucky to have amazing access to lakes, inland lakes, waterways, and coastal waterways, which many enjoy boating. However, what we’re noticing now over the last 20 years is a real increase in people being arrested for alcohol-related or offenses while boating. 

It’s no wonder because Texas State Agencies and County Authorities have been spending more and more money, resources, and training, which have resulted in subsequent arrests of people for alcohol-related offenses. 

We thought it would be a good idea for us to take the next three series and talk about alcohol-related offenses when you’re a boating water-skiing operating personal watercraft. 

Can the police pull you over or stop you while you’re on a boat?

The answer generally is yes. The police have unfettered access to stop you and detain you and come on your boat. It’s one of the warrantless exceptions under your constitutional rights here in Texas. And the auspices of that is going to be a safety check. Generally speaking, any Texas Parks and Wildlife, Coast Guard, or some like a County Agency, if they’re in charge of supervising the Lake, they can stop you and pull you over. They can stop you and check to make sure you have a fire extinguisher, safety lights, safety flares, your tags, registration in the right place, your stickers on the outside of your boat, life jackets, all those kinds of things. Suppose they smell alcohol or see alcohol out in the open. In that case, their investigation could quickly switch from a safety check and do some investigation for boating while intoxicated. You want to be aware that you can probably get pulled over and detained just pretty much anytime you’re operating a boat. 

Please join us over the next couple of In Your Defense series as we talk about alcohol and boating.

We will be answering the following questions: 

  • What is the definition under a penal code of a water boat?
  • What is the legal standard for being intoxicated on a boat? 
  • Can you be pulled over or detained on a boat? 
  • Can the police search your boat? 
  • Can people drink while operating a boat? 
  • Can passengers drink while you are operating the boat? 
  • What are the penalties if you are arrested and convicted of boating while intoxicated? 
  • Can you have your drivers license suspended?

If you have been arrested for boating while intoxicated and have questions, let us know, and attorney Steve Toland or us here at Peek & Toland can help you. 

What is an Immigration Priority Date?

By Peek & Toland on October 7, 2020

What is an immigration priority date? How long do you have to wait? And what happens if there’s a significant change from one month to the next? Attorney Jeff Peek answers these and other questions regarding priority dates.

What is a priority date? 

The date that gets assigned to you when you file a petition for somebody to immigrate to the United States, it could be a family member filing for a family member or even a business or a company filing for a key employee.

Priority dates are essential when you are not, what’s called an immediate relative. Immediate relatives or people never have to wait. Immediate relatives include:  

– Spouses of U.S. citizens

– Children under 21 of U.S. citizens

– Parents of U.S. citizens

Others, such as spouses of permanent residents, brothers of U.S. citizens, have to wait depending on if an immigrant visa is available to them. That is equally true with employment-based petitions. In the employment-based immigration process, there are different wait times depending on the categories and the country. For instance, countries that are no stranger to waiting times on the employment-based are India and China. Some wait times there are substantial for the EB2 and EB3 categories. 

However, recently, there was a significant change in the visa bulletin for October for the EB3 category for India. There was about a five-year change. Many people from India are now asking if they can adjust their status to EB2. It’s vital to first talk to an attorney before filing the petition, but the answer to the question I most cases is yes. You can file a petition on an EB2 to downgrade it to an EB3 or file a new to petition a new I-140 to get classified as EB3 potentially. If your previous labor certification was in that priority date, pre-2015, you could adjust status immediately. 

How long do I have to wait? 

You can visit the visa bulletin here. Click on the most current month visa bulletin, scroll down, and find a chart based on family or employment-based petitions. Once you selected your category, it will also be broken down by country. If you can’t find your country, it’s because it’s lumped with the rest of the world in a different category.  

What happens if there’s a significant change from one month to the next?

Imagine if you were a beneficiary EB2 from India this month, and you didn’t realize that there was a considerable jump for EB3. You can lose the opportunity to adjust your status sooner than expected. Also, if you don’t take action within a year of that priority date, there could be some consequences.

If you have an immigration question, please don’t hesitate to reach out to us at 512-474-4445 or visit our website at www.peekandtoland.com.

What Are the Rules Regarding Open Containers in Texas?

By Peek & Toland on October 2, 2020

With restaurants and bars being allowed to provide alcohol mixed drinks, beer, and wine to-go, it begs the question of what are the rules regarding open containers in Texas.

Texas still has one of the strictest rules governing open containers. Criminal Defense Attorney Steve Toland discusses four things you should remember regarding open containers in Texas.

1.What is an open container? 

It’s any receptacle that holds alcohol in it that’s open as or it’s had the seal broken off. An open container is also any amount that’s holding a beverage that’s been partially removed. So if you had like half of the contents of the bottle of wine removed, and then the cork stuck back, if an officer were to pull you over, you couldn’t then claim it’s not an open container.

2. It governs the whole passenger area of your vehicle. 

Many times, people think that if they’re over 21, and they’re in the backseat, they’re allowed to have an open container of alcohol. That is not true. It’s not correct. You’re still liable under class C’s misdemeanor laws in Texas, which is a non-jailable offense punishable up to $500. Therefore, anyone in the front or backseat is a restricted area for an open container.

3. It governs whether your car is stopped, parked, or operating on. 

All it matters is that you’re inside the car.

4. It governs when you are on a public roadway. 

That’s any area of ingress and egress a road, if you will, that’s publicly maintained.

However, there are two defenses or exceptions to the rules above. Number one, if the vehicle is for hire. For example, if you are over 21 and you’re renting a limousine or a party bus, you can have an open container. The other exception is recreational or camping vehicles—the passenger area restrictions are broader in that instance. The front area with the driver and the passenger in the front are restricted areas, but everything behind that in a recreational or camping vehicle is an exception to the general rule.

If you have any questions about alcohol-related offenses or any criminal liability issues, please contact Peek & Toland Law Firm at 512-474-4445 or visit our website www.peekandtoland.com.

How does the Appointment of Supreme Court Justice Affect Immigrants?

By Peek & Toland on September 30, 2020

As many are aware, unfortunately, Supreme Court Justice Ruth Bader Ginsburg recently passed away. The president will have to appoint a new Supreme Court Justice. Colleagues and clients are now wondering how is this going to affect immigrants? 

Attorney Jeff Peek discusses how electing a Supreme Court Justice can have an impact on immigration. 

We’ve had no less than three decisions that have had a significant impact on immigrants and how it can affect their lives and processes. 

  1. Department of Homeland Security v. Regents of the University of California 
  2. U.S. v. Pereda 
  3. Padilla v. Kentucky 

So that’s just three examples of the Supreme Court crafting decisions that affect millions of immigrants’ daily lives. When we think about how the president selecting a new Supreme Court Justice will affect me? It can significantly affect you, but potentially because he’s forming ideologically, the person who will be on that court will make decisions that will be followed by lower courts. And even in immigration courts for years and years to come. 

If you have an immigration question, please don’t hesitate to reach out to us at 512-474-4445 and book a consultation today. 

What You Should Know About Alcohol To-Go During the Pandemic

By Peek & Toland on September 25, 2020

As a wise person who once said, “In troubled times, you just need to know when to give up and have a margarita.” I think we can all relate to that. 

Attorney Steve Toland begins a new series breaking down the Executive Order that Texas Governor Abbott released in March about alcohol to-go during the pandemic.

On March 19th of 2020, he issued an executive order that over-read previous rules from the Texas Alcohol and Beverage Commission about alcohol to go from restaurants, but it spurs many questions that we’ve received frequently since. 

There are four things you should remember about the alcohol to-go in Texas. 

1. It only protects you for manufactured sealed alcohol. 

The alcohol needs to stay in the original container, which the manufacturer put it in. Restaurants cannot make their alcoholic beverage and put it in a styrofoam cup and put some scotch tape over it. Now they can make the cocktail mix that goes with it and sell that as a separate item, but they can’t sell the alcohol themselves. It has to be in its original sealed manufactured container. 

2. It applies to a certain volume of alcohol it’s 0.375 milliliters of alcohol.

Similar to those airline bottles, the tiny ones. You can’t go and get a bottle of service from a restaurant.

3. You have to purchase food with alcohol. 

Restaurants cannot turn themselves into a bar and start just selling liquor to-go. They have to sell you food as well, or you have to purchase food as well.

4. It doesn’t change the rules for those restaurants or bars that already had previously obtained specialty licensure from TABC to sell beer, to-go, or wine to-go. 

Those places are still in effect, but those rules don’t apply because they already had previous permission to sell. 

Those are the four things you should keep in mind about alcohol. It is legal. However, don’t forget, open container rules still apply. So you can’t take your little miniature bottle of alcohol, mix it, and then drive with it home. That would be a violation of class C violation in Texas of an open container rule. 

We’ll talk in future episodes of In Your Defense about the open container laws in Texas. 

If you have any questions about alcohol-related offenses or any criminal liability issues whatsoever, please reach out to us. 

A Court’s Decision is Changing the Future of TPS Holders

By Peek & Toland on September 23, 2020

What is TPS? How does it protect some immigrants? What did the Federal Court do this week that puts at risk for thousands of immigrants and their families? 

Attorney Jeff Peek answers all these questions and discusses how TPS holders need to start looking at other options.

What is TPS? 

TPS stands for Temporary Protective Status. The president can grant to specific countries when they have disasters, hurricanes, earthquakes, civil wars, famines, and others the nationals’ eligibility to be in the United States and work for a limited time. Some examples are El Salvador, Honduras, Haiti, Yemen, Sudan, and Nicaragua. 

Generally, it’s granted for two years at a time, and most presidents have kept renewing, and people are allowed to stay here until conditions in their home country improve. 

What’s been happening with TPS?

In 2017 President Trump was one of the first presidents ever to end TPS. Lawsuits were immediately filed, saying his motivations were racial. Therefore, that was not an adjust decision. The ninth circuit recently gave the green light to Trump’s administration to continue ending TPS, that there was no evidence of racial motivations. 

Therefore, it puts TPS holders at risk, especially those from El Salvador, Haiti, Nicaragua, Sudan, but eventually for all the countries. 

The USCIS has extended TPS through January 1, 2021, and for some countries, a little further. 

What does this mean?

There could be up to 400,000 people who are under TPS currently become undocumented citizens. TPS holders need to talk to an attorney immediately to start looking at other options. Especially if you are married to U.S. citizens or have a U.S. citizen child who is 21 years old or married a permanent resident. Others might have great jobs, and the employer willing to sponsor that’s another option. But the ninth circuit decision pretty much spells the end for TPS.

Can the decision be reversible? 

Now, the attorneys have announced they’re going to file and have the hearing considered “en banc.” That’s just a fancy Latin legal word that means to have the entire nine circuit for a hearing. I don’t know if that’ll be granted or not. They could also try to appeal it to the Supreme court. All these things take time. 

Another Court Decision Regarding TPS  

Another decision that came out from a different court affecting TPS. TPS holders get travel permits. You can apply for a travel permit called advanced parole, which allows you to travel outside the U.S. and come back in a preapproved reentry.

For the past several years, immigrants have been able to do that in that subsequent reentry on that travel permit counts as a lawful admission, which then makes them eligible for adjustment of status. Adjustment of status is just the ability to get permanent residency here in the United States, through a child or a family member, or even an employer. The new court decision says advanced parole does not count as an inspection. Therefore, you will not be allowed to adjust status through those family members, which it’s pretty disappointing news.

It is bad news all around for TPS today. However, let’s leave it on a high note. We’ve got an election in a month and a half, so hopefully, you’re registered to vote. If you’re a U.S. citizen, get out and make your voice heard. 

If you are a TPS holder, you will need to contact an attorney right away. Please reach out to us, and we would love to help you navigate through these changes. Contact us at 512-474-4445 or fill out our contact form on our website, and someone from our team will be in touch. 

Non-Disclosures in Texas | Am I Eligible?

By Peek & Toland on September 18, 2020

Today we wrap up our series on expungements and non-disclosures here in Texas. 

What is a non-disclosure? 

Non-disclosure is a process that enables you to hide or to seal your criminal record as it relates to a particular offense. 

Four questions you need to ask yourself if you’re considering a non-disclosure.

Am I eligible for a non-disclosure? 

In Texas, you are eligible to non-disclosure, hide, or seal certain parts of your criminal record. But only if you have completed successfully deferred adjudication probation. Therefore, if you entered a no-contest plea, and you were placed on community supervision, and you completed all the terms, you very well could be eligible to have it non-disclosed.

The second part of the eligibility analysis, though, is a little more challenging. Certain charges in Texas are not allowed to non-disclose. Those include violent crimes like murder, kidnapping, sex offenses, family violence, and any violence involving children. 

Do I need a lawyer for a non-disclosure? 

Yes, you do. Technically, you can do it yourself, but if there’s any ambiguity about the type of offense you successfully completed, your deferred adjudication period with, I think you need a lawyer to make sure it’s done correctly. 

How long does it take to get a non-disclosure? 

It’s about the same processes as an expunction. It can take maybe up to six months to have everything sealed or hidden. The process itself procedurally is about 45 days from when you request it when the prosecuting attorney will respond. Under the statute, they’re allowed 45 days to respond. And then if they have a response and they don’t object to it, a lot of times the judge will sign off on that order. You can expect at least about two months initially, and sometimes it takes a little longer for your record to be hidden or non-disclosed.

Do I need to hire a local lawyer for a non-disclosure? 

No, you don’t. We handle non-disclosures and expunctions all over the State of Texas.

Contact us if you have any questions about expungements, non-disclosures, and your eligibility for each. We’re always glad to help and clarify any of your questions. 

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