The Second District Court of Appeals Holds Standing is a Defense and Provides Powerful Tools for Defendants Diligently Pursuing the Defense

In the case of US Bank Trust National Association v. Lopez, 17 IL App (2d) 160967, the Second district re-affirmed the ruling in Deutsche Bank v. Gilbert, 2012 IL App (2d) 120164, and held (hopefully once and for all) that a Plaintiff in a foreclusre must have standing on the date of the filing of the lawsuit in order to proceed with a lawsuit. However, the Court also held it was a Defendant’s burden to show that the Plaintiff lacked standing when the suit was filed. The Court held that once standing has been properly stated, the burden will shift to a plaintiff to refute this evidence or demonstrate a question of fact. See Lopez

In Lopez, the Court rejected self-serving affidavits of a Plaintiff and statements by Plaintiff’s counsel as evidence of standing once the burden had shifted. See e.g. Lopez. However, the court did require a Defendant to produce enough evidence in order to properly shift the burden to Plaintiff. In this case, the court held a Defendant must proceed with diligence in defending a lawsuit and obtaining the necessary, and sufficient, facts and evidence utilizing the discovery process. This fact was made clear by the same Court in the case of US Bank Trust National Association v. Hernandez, 17 IL App (2d) 160850. In Hernandez, the lawsuit was filed on January 2, 2014. In that case there existed an assignment dated January 16, 2014 from HUD to the Plaintiff. Because the assignment post-dated the lawsuit, the Defendant challenged standing on the basis that there was a material issue of fact with regards to whether the bank had the debt on the date of filing and pointed to the assignment as evidence in support of the argument.

Even though the evidence clearly demonstrated a possibility the bank did not have proper rights to the note on the date of filing, the Court found that the mere existence of an assignment was not sufficient to overcome the presumption of ownership conferred by an endorsement and went into great detail about the burden of a Defendant of providing as much history as necessary to demonstrate that the transfer of the Note did not occur before the Complaint was filed. Hernandez at ¶22

In fact, Hernandez made it clear that in order for a Defendant to proceed with a case, the Defendants could have, through depositions or interrogatories, definitively shown when Plaintiff obtained an interest in the mortgage and that it is a Defendant’s duty to make this effort and not simply point to assignments as evidence. Id at ¶22

Thus, the standing defense is alive and well in Illinois, but it is a Defendant’s duty to investigate a Plaintiff’s allegations in its Complaint and a Defendant cannot simply sit back and rely on documentation filed with a lawsuit unless the evidence is clear like in the Deutsche Bank or Lopez cases.Defendants thus should, through counsel, engage and utilize the powerful tools of interrogatories, requests to produce, requests to admit, and depositions made available to them in the Supreme Court Rules to investigate the claims made by a Plaintiff. If they do so, then the courts have made clear through these rulings, then they will be adequately protected from Plaintiff’s attempting to file lawsuits on debts that they do not actually own and have no rights to proceed on when the Plaintiff files a lawsuit. These are tremendously powerful rulings that no defendant in a foreclosure lawsuit should ignore.

If you are facing a foreclosure issue, please contact Drake Shunneson today. You can contact him at (815) 385-6840 or Email him at drake@dlfirm.com to discuss what he can do to assist you!

NOTICE:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact your attorney directly, or Drake Shunneson, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of any law office or law firm the author is, or was, associated with or any other individual attorney, entity or individual.

Regulation X and how it helps sellers sell their homes through a short sale

Regulation X and how it helps sellers sell their homes through a short sale:

If you owe your mortgage company more than your house is worth then you are underwater, but you can still sell the property short of the amount you owe through what is called a short sale. In order to sell your home in a short sale you have to get a contract for the sale of your property and your bank has to approve the contract. This often results in a waiver of deficiency to you and lets you walk away from the property without owing the bank anything.

However, short sales can be tricky as it is not unusual for sellers to have a tremendously difficult time obtaining short sale approval from the banks. In my personal experience, some banks, through their mortgage servicing companies, often delay giving a seller an approval by making incessant demands for additional, duplicative, or other unnecessary documents. In my personal experience, a bank may also avoid giving an approval by simply ignoring the short sale application until the buyer cancels the deal or the bank is successful in getting a foreclosure judgment against the sellers and sells the property.

Fortunately, due to the Dodd-Frank Act and Regulation X, the servicing companies are now required to acknowledge a complete short sale loss mitigation application and respond to them within 30 days of receipt of a complete short sale application. Under Regulation X, these servicing companies must respond to demands that they correct errors in demanding unnecessary documentation and cannot simply ignore applications. While working at Diamond & Lesueur, PC, I have seen multiple banks approve short sale applications once our office has used Regulation X to demand the servicing companies correct errors involving unnecessary documentation demands, for ignoring a complete application, or other servicing errors. Sellers should be aware that they have rights when it comes to getting the banks to approve their short sale applications through this wonderful borrower friendly law.

NOTICE:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact your attorney directly, or Drake Shunneson, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of any law office or law firm the author is, or was, associated with or any other individual attorney, entity or individual.

New Illinois Senate Bill 0192 Gives License To Banks to Go After Illinois Homeowners In Foreclosure

On January 18, 2017, Senator Pamela J. Althoff introduced a bill in an effort to essentially eliminate the due process rights of individuals in Illinois foreclosure courts. This bill, Senate Bill 0192, which is available here: http://www.ilga.gov/legislation/BillStatus.asp?DocTypeID=SB&DocNum=192&GAID=14&SessionID=91&LegID=100107 mandates that when a foreclosure lawsuit is filed, the bank essentially is presumed to have the right to take your property away upon offering evidence of (1) the mortgage and (2) the note (i.e. any proof of a mortgage debt). The bill attempts to place a huge hurdle upon individual’s in distressed homes including a requirement that an individual that owes money on a mortgage prove that he made payments on a debt. The only way to challenge the bank is in a court house through the complicated court systems. If a person who owes a debt on a mortgage is not successful in navigating the complicated legal system, then they will “waive” the right to challenge the banks claims. I want that to really sink in with the reader. If you don’t know how to use the legal system (and most don’t without a lawyer), then the bank can win the lawsuit, even if what they say is not true.

For example, let’s say that you have been making payments on your mortgage loan for years. However, one day you come home to find that the bank is telling you that you haven’t paid the mortgage, even though you have. A bank eventually files a lawsuit based on its false representations and attaches a copy of the mortgage and note that you signed with the original bank. This bank isn’t even a bank that you’ve ever heard of. Without a lawyer, you show up and try explaining to the judge what is going on. The judge tells you to file an “Answer.” Without the assistance of counsel, you do the best you can, but you do it wrong by failing to raise a defense of standing and failing to raise applicable defenses based on your payment of the loan. Based on my experience working with clients 99% of the time, they do it wrong. You hire a lawyer because the bank just won’t stop suing you. An experienced lawyer comes in and tries to unwind your answer to argue that, in fact, you paid your mortgage and the bank should not be suing you. At this point though, if this law is passed, it doesn’t matter because you “waived” this issue.

Also, because all a bank has to do is attach a mortgage and note to the lawsuit, this new bank has now put the burden on you to raise a defense that it is not even the bank that should be suing you. Your experienced lawyer issues discovery and demands this new bank provide documents and proof that it actually obtained rights to your mortgage. This new bank refuses and argues that it has “proven” that it can take your home by attaching the mortgage and note to the lawsuit it filed. Your lawyer goes to the judge to ask that the judge force the bank to give you information and documents. The new bank tells the judge that you did not file a defense of “standing” and that, because of the new law, they don’t have to give you any documents and the judge agrees. Your lawyer is now stuck. Your lawyer needs the documents to challenge the bank’s ability to file the lawsuit. There is also no other good way for your lawyer to find out this information or get the documents because the bank is the only place that has the information and documents. Trust me, the bank is also not going to help you out by just giving you these documents.

So, in the end, even though you paid the bank the mortgage and even though this new bank that you’ve probably never even heard of is suing you, you lose your home and end up owing the bank a ton more money in late fees, fees, court costs, and in their lawyer’s legal fees.

Also, to be clear, this is not an outlandish hypothetical situation. There are people in this state that are presented with these situations, including clients I have represented.

It is also not a situation that wasn’t contemplated when the bill was introduced. According to a source that spoke with Senator Pamela Althoff herself, the senator introduced the bill when a bank’s attorney in her district called her and complained and asked that she propose language to help large corporate banks foreclose on people easier.

I wonder if this Senator would agree that the bank’s lawyers primary concern about making it easier for the large corporate banks to take people’s homes away should not be a priority deserving of her time and effort?

Our justice system may not be perfect, but one thing that both the bank’s attorneys and a foreclosure defense attorney did is swore to the U.S. Constitution and the Illinois Constitution. It is a fundamental principle and right of the people of this great state, and of our nation, to not be deprived of life, liberty, or property, without due process of law. This bill is nothing less than an attempt by the big corporate banks to deprive all people in the state of Illinois of that most fundamental and sacred right.

To call and complain to the Senator please call 217-782-5923. To call and complain to her staff attorney please call 217-782-6205

NOTICE:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact your attorney directly, or Drake Shunneson, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of any law office or law firm the author is, or was, associated with or any other individual attorney, entity or individual.

What is a consent foreclosure in Illinois and how is it like a Deed-in-Lieu of foreclosure

Illinois is a judicial foreclosure state. This means that in order to obtain a property back after a default on a mortgage and note, the bank must sue the borrower in state court by filing a foreclosure lawsuit. This can be an arduous, expensive, and time consuming endeavor for the banks. If the bank wins, then the homeowner can often be found liable for a “deficiency,” which is the difference between the amount owed on the note and what the bank manages to get paid in the foreclosure lawsuit after a court-approved judicial sale. For example, if you owe your lender $200,000 and the property is eventually sold at a judicial sale for $120,000, then you could possibly be on the hook for $80,000.00.

Sometimes our clients want to avoid the lengthy court process, return the property to the bank, and walk away without a deficiency judgment. Often, we advise our clients already in the lawsuit that a good way to do this is through a provision of the Illinois Mortgage Foreclosure Law (IMFL) called a consent foreclosure.

This process is similar to a Deed-in-Lieu of foreclosure, which allows for individuals to turn the property over to the bank without going through a foreclosure. However, unlike some Deed-in-Lieu of foreclosures, a consent judgment is a state law that provides that, upon agreement of the parties, a party can walk away from the home without owing the bank any deficiency. It is also done through the court system, thus sometimes avoiding long negotiations with the banks. This means that, if you have a capable attorney who can appropriately negotiate a consent foreclosure/consent judgment on your behalf, you will give the bank back the property and not owe the bank anything.

Our clients like a consent foreclosure because it allows for them to move on with their lives without the burden of a possible deficiency judgment hanging over their head and, often, allows for them to avoid bankruptcy. The banks like a consent foreclosure because it avoids future legal costs, fees, and the possibility of losing the property if the defendant is successful in his, her or their foreclosure lawsuit.

The only potential downside is that there could be tax implications from the forgiven debt. While Congress has provided relief from this tax debt in the past, it has failed to adequately address this issue in recent years. However, whatever the tax implications, it is often well worth it to avoid a potential deficiency of tens, if not hundreds, of thousands of dollars in debt.

If a lender has already sued you, do not wait to consider your options. An experienced attorney can help you in your time of need and help you reach your goals.

If you, or someone you know is struggling with overwhelming debt and needs a fresh start, call us today! We are devoted to giving you a fresh start, while protecting important property in the face of overwhelming debt. Contact us for a free phone consultation to better inform you prior to talking to an attorney, or anyone else making promises about your financial future. Located in Illinois with meeting locations throughout the Chicagoland area, we have ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

NOTICE: The materials provided are for informational purposes only and should not be viewed as legal advice. The materials also mainly concern Illinois foreclosures. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problems. This article, by itself, does not create an attorney-client relationship and the opinions are those of the individual author and do not reflect the opinions of any Law Office or any other individual, attorney, entity or individual.

Can My Illinois Bankruptcy Attorney File a Chapter 7 Bankruptcy For Me and Get Rid of My Debt?

Chapter 7 Bankruptcy is many people’s ultimate weapon in getting rid of all their unwanted debt and starting fresh. However, in order to file for a Chapter 7 Bankruptcy, you must meet the criteria set out by the bankruptcy code (the law governing bankruptcies). For a Chapter 7 Bankruptcy this means that:

  • Your income is not over the “means test;”
  • You have not filed a bankruptcy before for a certain amount of time; and
  • You cannot have a large amount of assets or things that you could be using to pay off your debts; and
  • You cannot be trying to cheat your creditors (the people you owe money to)

So, right about now you’re probably scratching your head wondering what that means and whether you actually do qualify. Well, the rest of this article will explain these three criteria for you:

1. The Means Test

Even though the laws are written to give everyone a fresh start through bankruptcy, the laws also try to be fair to the people you owe money to (creditors). In this regard, the bankruptcy laws will only let you get rid of your debt if your income isn’t too high. This is done by determining what your “current monthly income” is for you (and your husband or wife if you are married). This is determined by looking at your average income over the past six months. This amount is then compared to the average amount of money a family of your size makes inIllinois. If your income is less than or equal to that amount, then you can file for a Chapter 7 Bankruptcy. I would post this amount here, but it changes often and, like I said, it is different based on your family’s size.

But wait! There’s more! Even if you don’t qualify because you make more than the average amount of money a family of your size makes inIllinois, a knowledgeable Bankruptcy lawyer can still help. Many times someone will make more, but, because they have expenses that can be used to reduce the “current monthly income” amount, we can still file a Chapter 7 Bankruptcy for them.

If all else fails, like I said, the laws are written to be fair. As such, if you make too much money for a Chapter 7 Bankruptcy, then a skilled Bankruptcy Attorney can still help you get rid of a lot of your debt, and force the creditors into accepting a low monthly amount for the rest of the debt, through a Chapter 13 Bankruptcy.

2. Prior Bankruptcies

This is pretty straight-forward. Because the laws are trying to be fair to both you and the people you owe money to, you can’t get rid of all of your debt today, turn around and have a massive party costing $300,000 tomorrow, file bankruptcy next week and then, after that, buy a Lamborghini for $500,000 and file for bankruptcy the next month. The way the law stops this is by creating a waiting period before you can file for bankruptcy after you have already filed for bankruptcy. In this regard, you cannot file for a Chapter 7 Bankruptcy for 8 years after you file for a Chapter 7 Bankruptcy. There are also some other waiting periods for you if you have filed a Chapter 13 before you can file a Chapter 7 if you’ve gotten a “discharge.” Luckily though the law is still fair to you and allows many people to file for a Chapter 13 very swiftly if they have filed for a Chapter 7 before. Call us today to find out more!

3. Excessive Assets

A good bankruptcy attorney can use all of the available property “exemptions” to protect a huge amount of assets (things and money you have) from the people you owe money to (including, for most people, their house, cars, retirement funds, a lot of their furniture and a set amount of cash). BUT, even the best bankruptcy attorney cannot protect someone who is, essentially, a millionaire just trying to not pay. Why? Because that is just not fair!

Again, because the laws are trying to be fair to both you and the people you owe money to, you can’t amass millions of dollars, quit your job, and, then, 7 months later file bankruptcy and state that you have zero dollars in income. Actually, you could, but the millions of dollars in money that you have would be taken away from you by the “trustee.”

To know what you can, and can’t, keep in a bankruptcy, you must really speak with an attorney.

4. Cheating your Creditors

Remember how I said you can’t just have a $300,000 party a day after you file bankruptcy and then file bankruptcy the next day? Well, you also can’t just have a $300,000 party and then, the next day, file bankruptcy. Again, this is because the bankruptcy laws are trying to be fair to you and the people you owe money to. In this regard, someone that is just racking up a huge amount of debt, but knows that he is going to be trying to get rid of that debt a few months later, is not going to be helped out by bankruptcy. Bankruptcy is designed to help people overwhelmed by debt and struggling to pay their bills get a fresh start, not to protect the frat boys in Animal House.

If you, or someone you know is struggling with overwhelming debt and needs a fresh start, call us today! At Shunneson Law Office, I am devoted to giving you a fresh start, while protecting important property in the face of overwhelming debt. Contact us for a free phone consultation to better inform you prior to talking to an attorney, or anyone else making promises about your financial future. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

-Drake Shunneson (copyright 2013)

NOTICE: The materials provided are for informational purposes only and should not be viewed as legal advice. The materials also mainly concern Chapter 7 bankruptcies. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problems. This article, by itself, does not create an attorney-client relationship and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual, attorney, entity or individual. Photos: FreeDigitalPhotos.net.

This article has also been published, with permission, on Attorney Karen Walin’s Blog.

Illinois Workers Compensation Independent Contractor Determination

Under the Workers Compensation Act, an independent contractor is not an employee and, therefore, is not entitled to benefits. Bauer v. Industrial Commission, 282 N.E.2d 448 (1972)). Often an employer will try to avoid paying your workers’ compensation benefits by trying to classify you as an independent contractor, pay you as a “1099” employee for tax purposes, and tell you that you are an independent contractor and not entitled to employee benefits, such as workers compensation benefits. Accordingly, determining whether you are an independent contractor or an employee is important when your employer denies Workers’ Compensation coverage on the basis you are an “independent contractor.”

Initially, it should be noted that just because an employer calls you an “independent contractor,” and pays you as a 1099 employee, that does not mean that a Court (the Workers Compensation Commission) will agree. The Workers Compensation Commission does not care what you or your employer believed the relationship to be and will determine whether you are an independent contractor only after it reviews all the facts. Ware v. Industrial Commission, 318 Ill.App.3d 1117, 743 N.E.2d 579 at 583, 252 Ill.Dec. 711 (1st Dist. 2000) . In fact, no rigid rule of law exists regarding whether a worker is an employee or an independent contractor. Ware v. Industrial Commission, 318 Ill.App.3d 1117, 743 N.E.2d 579 at 583, 252 Ill.Dec. 711 (1st Dist. 2000) . In this regard, the Commission looks at a number of factors to determine if someone is an employee or an independent contractor under the Act. Of all of the factors though, the most crucial factor “remains the degree of control which respondent (your employer) exerts over the means by which claimant (you) completes his tasks.” Lowe v. Industrial Commission, 507 N.E.2d 881 (4th Dist. 1987). The Courts reason that “the right to control the work is perhaps the most important single factor in determining the relation . . . inasmuch as an employee is at all times subject to the control and supervision of his employer, whereas an independent contractor represents the will of the owner only as to the result and not as to the means by which it was accomplished.” Romondo v. Industrial Commission, 525 N.E.2d 1005 (1st Dist. 1988).

As a general rule, this means that, the more “control” your employer has over how, when, where, what you do, and what tools you use to perform the job, and who you co-workers are, then the more likely you are going to be found to be an employee. Some factors that mitigate against a finding would be your control over your own hours, how you perform the job, and what tools/clothes are used in completing the job.

It should be noted that the courts have given increased significance to the nature of the work performed in relation to the general business of the employer, which is known as the “Larson theory,” but this is not controlling in Illinois. See Ware v. Industrial Commission, 318 Ill.App.3d 1117, 743 N.E.2d 579 at 583, 252 Ill.Dec. 711 (1st Dist. 2000) .

Some other factors include:

  • Setting of the schedule, schedule work, setting quotas or time requirements;
  • Setting work locations, regular reporting locations, requiring work at regular intervals;
  • The right of the employer to discharge the worker;
  • Ability to work for other companies;
  • The method of payment, amount of wages, including the withholding of taxes;
  • Supplying training/instruction, tools, supplies, materials, equipment and needed instrumentalities;
  • Requiring a uniform;
  • The level of skill required to perform the work, independent trade, occupation, profession, or business;
  • Labels the parties place on their relationship and any contracts with the employer
  • Nature of the work/type of work performed and the general business of the employer; See e.g. Skzubel v. Illinois Workers Compensation Commission, 927 N.E. 2d 1247 (1st Dist. 2010).

Of course, this list is not a complete, and exclusive, list of factors that can be considered and one factor that is important in one case may not be in another. Further, just because you meet one of the factors, does not mean that you are an employee. The determination is based on a “totality of the circumstances.” For example, even though a physician may be a highly skilled worker, if he or she is under contract that prohibits him or her from working for any other physicians or hospitals the employer works with, must see all his or her patients in the hospital, and must refer all his or her surgical patients to the hospital, then it is likely the physician worker will be found to be an employee. Further, even though a cabbie or truck driver may lease his cab or truck from a company, and has his “own” company, a driver may still be an employee under the Act. See Yellow Cab Co. v. Industrial Commission of Illinois, 238 Ill.App.3d 650, 606 N.E.2d 523, 179 Ill.Dec. 691 (1st Dist. 1992).
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If you believe you have been wrongly denied benefits by being labeled as an independent contractor, we highly reccomend a consultation with an experienced workers’ compensation lawyer.

If you, or a loved one, has been injured at work, then you need information about your rights. At Shunneson Law Office, I am devoted to demanding an insurance company cover your injuries following accidents. Call (847) 693-9120 for more information or contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday – Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

-Drake Shunneson (copyright 2012)

NOTICE: The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problems. This article, by itself, does not create an attorney-client relationship and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual, attorney, entity or individual. Photos courtesy of FreeDigitalPhotos.net While the author has utilized his experience and knowledge of workers compensation law in writing this article, as well as many articles, books, statutes, regulatory rules, treatises, and internet sources, some of the ideas and material for this article were obtained from the Illinois Institute for Continuing Legal Education’s Illinois Workers’ Compensation Practice Guide (2011), which deserves special recognition.

 

Immigrating to the U.S. by Petitioning for Lawful Permanent Resident Status through a Family Member

Generally, under U.S. Immigration law there are two pathways to becoming a U.S. citizen. Namely, “employment-based immigration” and “family-based immigration.” Of these two, the most common pathway to becoming a U.S. citizen is through your family members that are either lawful permanent residents (family members with green cards) or United States citizens.

It is extremely important that someone that wants to immigrate to the U.S.A. understands that the U.S. immigration laws differentiate between family members immigrating through lawful permanent residents and U.S. citizens in a number of ways. Although a lawful permanent resident is generally eligible for U.S. citizenship after 3-5 years, they are not U.S. citizens and are only granted rights to work and live in the U.S.A. Further, lawful permanent residents can potentially have their green cards taken away if they fail to follow the rules. For example, a lawful permanent resident that is convicted of robbery will not only be prosecuted for their crimes in the U.S.A., but will be deported to their country of origin.

Because green card holders may, potentially, be deported, or, more likely, eventually obtain citizenship status, the immigration laws differentiate between what types of family members may immigrate through a green card holders and a U.S. citizens.

Pursuant to INA §201, 203, et seq., someone wishing to immigrate to the U.S. (called a “beneficiary”) through a U.S. citizen family member (called a “petitioner”) may do so under the family-based immigration pathway if, but only if, they are the citizen’s: husband or wife; children of the citizen; brother or sister of a citizen older than 21 years of age; mother or father of a citizen older than 21 years of age.

Even though lawful permanent residents are not U.S. citizens, because the purpose of family-based immigration is to allow families to be together, U.S. immigration laws also allow for certain, more limited, family members to immigrate to America through a green card holder as follows: husband or wife of the green card holder, unmarried children under age 21; unmarried sons or daughters age 21 or older.

Even though the law allows for family members to immigrate to the U.S.A. if they meet the family relationships described above, there are still many things that could prevent an individual from actually immigrating.

One common bar is the rule that an immigrant must not be “inadmissible” pursuant to INA §212. For example, if someone aged 24 has been living in the United States illegally for three years, then they are inadmissible under the rules (this is true even though they may be able to obtain a waiver with the help of a knowledgeable attorney).

Probably the biggest bar to immigration though is the “preference system” that is in place. Although there are many family members that can obtain a green card immediately after the government receives an application, many other family member classes do not and have to wait for their visas. This is because the government has set up a system whereby only so many visas are issued to different types of immigrant applicants based on the type of family member that they are.

For example, the total number of visas issued to brothers and sisters of U.S. citizens over the age of 21 is 65,000 in any given year . Of course, there are more than 65,000 applications for a brother or sister of a U.S. citizen in any given year and there simply are not enough visas to go around. This means that most applicants will have to wait for their turn. This process can take many many years and, in some cases, well over a decade.

Another common bar is for individuals that make substantially less than the common American. In order to bring a family member to the U.S.A. through immigration, the petitioning family member must sign a contract with the government essentially promising to protect the government financially if the family member, say, goes on welfare. Poorer families are prohibited from bringing their family members (called “sponsoring”) a beneficiary and bringing their family members to the United States if they can’t prove that they can help the government if their family member needs welfare, etc. This can be helped with finding another family member that is willing to sign that contract with the petitioning family member (called a“joint sponsor”).

Because of the sheer complexity of these barriers, as well as the massive number of immigration laws, IT IS NOT RECOMMENDED that anyone attempt to file immigration paperwork without the assistance of an experienced, knowledgeable, and skilled immigration attorney .

-Drake Shunneson (copyright 2012).

At Shunneson Law Office, we are dedicated to helping you with your immigration problems. Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos: FreeDigitalPhotos.net.