Green Card Processing: Adjustment of Status Versus Consular Processing

June 13th, 2017

Recently, a client who is a US citizen contacted me about sponsoring her elderly parents for legal permanent residency and the optimum way to proceed. US citizens may sponsor their spouse, children, parents and siblings for legal permanent residency.

Foreign nationals can obtain legal permanent residency either by adjusting (changing) their status in the US or by going to a US Consulate abroad and getting the immigrant visa. For adjustment, the I-130 and the I-485 are the primary forms. If the adjustment application is based on marriage, then the foreign national and his or her spouse will be interviewed to determine if it is a real marriage and the foreign national is eligible (for parents of US citizens this interview is usually waived). The foreign national will definitely be scheduled for biometrics around one month after filing. Also, with the adjustment application the foreign national can file for the advance parole travel permission, which allows him or her to travel abroad while the I-485 is pending. If the foreign national departs the US before obtaining the advance parole document, then he or she will abandon the I-485 and need to consular process abroad for the immigrant visa (although there are exceptions for H-1Bs and L1s).

The one very important caveat is that foreign nationals cannot enter the US as a nonimmigrant with the intent to file to adjust their status in the US (with the exception of dual intent nonimmigrants such as H-1Bs and L-1s). They can enter as nonimmigrants, such as B-2 visitors or F-1 students, and then have an I-130 filed for them to obtain their immigrant visas abroad. Also, if the petitioner files only the I-130 immigrant visa petition for consular processing abroad, then the foreign national may not be able to enter as a nonimmigrant while the case is pending (except for those with dual intent visas like the H-1B or L-1).

If the foreign national does enter as a nonimmigrant (without a dual intent visa) with the “illegal” intent to obtain legal permanent residency in the US through adjustment of status, then the US government could make a fraud finding against this individual and bar the individual from entering the US. There is a waiver available for a foreign national who can show extreme hardship to a US citizen or legal permanent resident spouse or parent, but these cases are very challenging.

US Department of State Visa Bulletin for July 2017

June 10th, 2017

The US Department of State (DOS) has issued its Visa Bulletin for July 2017 with the current priority dates for immigrant visas. A foreign national may be issued an immigrant visa, or have his or her I-485 application to adjust status to legal permanent residency approved, only when the US DOS’s priority date on the applicable chart is past the priority date assigned to the I-140 immigrant visa petition. A foreign national may retain his or her priority date from an earlier approved I-140 in many situations.

For the EB-2 worldwide category, the priority date is still current (C). For the EB-2 category for those from India the DOS is issuing immigrant visas for those with priority dates up to July 22, 2008. For the EB-2 category for China it is March 22, 2013. For the EB-3 worldwide category, the DOS is up to the priority date of June 8, 2017, which is pretty much current. For the EB-3 category for India it is February 15, 2006, and for those chargeable to China (born in China) it is January 1, 2012.

It is important to note that there are two charts – Chart A for final action and Chart B for filing the application. USCIS is following the dates on Chart A for filing the I-485.

EB1 for China and India Retrogresses in June 2017 until October 2017

May 11th, 2017

The US Department of State’s June 2017 Visa Bulletin shows EB-1 final action dates retrogressing for China and India until this October. However, the filing dates remain current. Hopefully, USCIS will continue to allow those from India and China to file I-485 applications to file to adjust status pursuant to an EB-1A extraordinary ability or EB-1B outstanding research petition. This will provide them with status in the US, although not an approval.

How to Obtain the Green Card in the US Based on Marriage

April 16th, 2017

Those wishing to obtain legal permanent residency, or “green card” status, based on marriage should obtain legal counsel before filing for such status. Too many foreigners have made the mistake of filing the wrong type of case and subjecting themselves to a possible fraud finding, which can lead to a permanent bar to coming to or remaining in the US. There are two ways of obtaining legal permanent residency: (1) by filing to adjust status to legal permanent residency for those already in the US; and (2) to obtain an immigrant visa from a US consulate abroad after being interviewed by a consular official in a foreign country.

Most foreigners prefer to change their status in the US if they are already here, since the processing time to obtain an immigrant visa abroad can be long and the process of going through the US consulate abroad is burdensome. Most importantly, for those who are spouses of US citizens, the wait could be up to one year on average, and for those whose spouses are only legal permanent residents, the wait could be months, or even years longer, depending on immigrant visa availability. Also, if one must consular process abroad, he or she may be unable to enter the US in the interim on another type of nonimmigrant visa.

In order to adjust to change status to legal permanent residency in the US (Form I-485), the foreign applicant must show that he or she entered the US lawfully (inspected by a US border official) and that he or she did not enter the US with the intent to remain and obtain legal permanent residency if he or she did not enter using a nonimmigrant that allows for immigrant intent (such as the H-1B or L-1A or L-1B). In other words, a foreigner may not enter the US as a B-2 visitor or visa waiver entrant with the intent to remain in the US and get his or her green card status. This bar only applies if the US border official asked the foreigner his or her intent or purpose for staying in the US and the person lied.

If at the adjustment of status interview the US adjudications officer determines that the person entered with immigrant intent and misrepresented his or her purpose to the US border official, then a fraud finding will be made. If the applicant cannot obtain a fraud waiver, showing extreme hardship to a spouse or parent who is a legal permanent resident or US citizen, then his or her case will be denied and she will be barred from the US. The applicant can file the hardship waiver again, and that is recommended where circumstances change showing the extreme hardship. USCIS’ policy is to deny such hardship waivers where the qualifying relative would suffer the usual emotional hardship from the separation. It is critical to obtain as much evidence as possible documenting how such emotional hardship would be unusual and extreme, including an evaluation from a psychologist or psychiatrist and evidence of a prior history of depression, suicide or anxiety and any medical treatment followed. The applicant can also provide other evidence of hardship, such as economic hardship were the US spouse compelled to live abroad and lose the source of his or her income.

USCIS Announces Adjustment of Status Filing Dates for April 2017

March 19th, 2017

US Citizenship and Immigration Services (USCIS) has announced the filing dates for applicants for adjustment of status to legal permanent residency for April 2017. Those applicants filing employment-based Forms I-485 should use the final action date chart while those filing based on an family immigrant visa petition (I-130) should refer to the filing date chart.

How Can I Get a Green Card Based on Marriage?

January 22nd, 2017

A foreign national can obtain legal permanent residency (a “green card”) based on marriage either by adjusting (changing) status in the US or obtaining an immigrant visa at a US consulate abroad. Either route requires a showing of a genuine marriage and admissibility and adjusting status in the US requires additional evidence regarding how the person entered the US. These cases involve many complicated areas of US immigration law and are not as easy as filing forms found online. The discussion below will summarize the main points of this process and why it is critical to obtain legal representation.

A foreign national may only adjust status in the US if he or she entered legally, which means with inspection either with a visa or without a visa under special exemptions allowed by US law, including the ESTA visa waiver program and Treaty NAFTA. Also, the foreign national could not have entered the US with a nonimmigrant visa but with the intent to remain in the US to obtain legal permanent residency (or immigrant status). This is because most nonimmigrant visas do NOT allow for immediate immigrant intent. The exceptions to this nonimmigrant or temporary intent requirement are the L-1 and H-1B visas, which allow the foreign national to enter the US with the intent to obtain legal permanent residency. The other exception to the legal entry requirement is if one was the beneficiary of an immigrant visa petition or labor certification filed before or on April 1, 2001, and was physically present in the US on December 20, 2000. This exception is known as section 245i and an attorney should be consulted regarding this route, since it involves a highly advanced review of the foreign national’s immigration history and how it satisfies this highly esoteric area of the law.

If a person is not eligible to adjust status in the US, then he or she must attend an interview for the immigrant visa abroad. If approved, an immigrant visa stamp is placed in the person’s passport and then they will receive the alien registration card after entry into the US. As discussed below, if a foreign national is inadmissible then he or she would needs a waiver to enter the US.

To show a real marriage, USCIS will request proof of a valid marriage, including valid divorce decrees or death certificates is applicable, since polygamy (marriage to more than one person) is not allowed. Evidence of a real marriage includes birth certificates of children together; jointly filed tax returns; jointly owned property or a lease in both names; joint utility bills; insurance, such as life, health and auto; medical and school records; declarations from friends and family, photos.

One must be admissible to be able to obtain legal permanent residency. Grounds of inadmissibility include certain overstays in the US for at least six months (but only if one departed after such overstay), crimes, prostitution, bigamy, terrorism, fraud for an immigration benefit, persecution of others, abduction and a host of other acts considered dangerous or unacceptable to the US. Some of these grounds of inadmissibility may be “waived,” which means that the US government can admit one despite such activity if the foreign national meets the standards for the waiver for that particular ground of inadmissibility. For example, if one lied in the past to obtain an immigration benefit (such as obtaining a B-2 visitor visa), then a waiver would require that the foreign national has a spouse or parent who is a US citizen or legal permanent resident and that qualifying relative would suffer extreme hardship if the foreign national could not enter the US or obtain legal permanent residency in the US through adjustment of status.

Another important aspect of obtaining legal permanent residency through a spouse is the financial contract that the US citizen spouse sponsor must sign with the US government. This affidavit of support (Form I-864 or I-864A) requires the US sponsor to show that he or she has sufficient income or assets for his household size and his or her tax returns for the last three years if required to do so. If the US citizen sponsor does not satisfy these rules, then a co-sponsor will also be required to file an affidavit of support contract with the US government. This financial contract is valid for 10 years or until the foreign national becomes a US citizen, departs the US permanently or dies. Divorce does not terminate the sponsor’s obligations. These obligations include that the US citizen sponsor support the foreign national at 125% of the federal poverty guidelines if the foreign national cannot support himself and that the sponsor repay the US federal, state or local government for means-tested welfare benefits used by the foreign national if the government seeks reimbursement. Also, there are other rules associated with the affidavit of support that are little known and quite problematic, especially regarding self-employed sponsors.

Determining a foreign national’s eligibility for legal permanent residency and whether the sponsor meets the affidavit of support requirements requires advanced knowledge of USCIS’s byzantine immigration laws. Some may try filing themselves thinking that it is as easy as completing and submitting forms to USCIS, but this is foolhardy. In fact, some applicants may find themselves in removal proceedings if the application is denied.

Another reason that it is critical that an immigration attorney assist in the case concerns one’s right to work and travel during this process. An applicant for adjustment of status may abandon such application and be stuck outside the US to consular process abroad if he or she does not follow the rules for foreign travel during this period. Also, if it is a foreign national’s intent to work in the US legally as soon as possible, then it is imperative that the application be filed correctly to avoid any delays.

USCIS Announces New Versions of Immigration Forms Effective as of December 23, 2016

December 26th, 2016

Without any prior notice, USCIS announced on December 23, 2016, that new versions of most immigration forms would be required as of December 23, 2016, except for the Form I-129. The affected forms include the following: I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K. AILA immediately contacted USCIS to inform it that the public should have been given notice and to demand that a grace period should be provided. USCIS responded that it will be flexible and exercise discretion in deciding whether to accept the older version of the forms.

New DHS Rule on High Skilled Workers I-140 Petitions and I-485 Portability

December 23rd, 2016

US DHS Final Rule on High Skilled Workers Provides Protections and Benefits for Beneficiaries of Form I-140 Immigrant Visa Petitions

On November 18, 2016, the Department of Homeland Security (DHS) published a final rule providing benefits to many highly skilled nonimmigrant workers and those workers with immigrant employment-based cases (Forms I-140) in the EB-1, EB-2 and EB-3 categories. This final rule will become effective on January 17, 2017. Among the benefits provided by this rule are that of retention of the priority date of the approved I-140 immigrant visa petition and the maintenance of the validity of the petition itself for H-1B extensions, employment authorization upon a showing of compelling circumstances and I-485 adjustment of status portability.

Retention of the Priority Date

The priority date of an approved I-140 employment-based immigrant visa petition is the beneficiary’s place in line for an immigrant visa. There are a limited number of immigrant visa numbers available each year with the same number being allotted to each country. Backlogs develop as a result of more applicants than numbers being available and this pertains in particular to certain applicants from India and China. If one is able to retain the priority date, then a subsequent I-140 petition on behalf of that same beneficiary will have that earlier priority date. Therefore, for foreign applicants from oversubscribed countries, retaining one’s priority date, or place in line, is a very important in obtaining legal permanent residency sooner than later.
In the final rule, the DHS provides that the beneficiary will retain the priority date of the Form I-140 immigrant visa petition, regardless of whether it is revoked, except when the I-140 is revoked for fraud, misrepresentation or material error. No longer will there be any risk that the beneficiary will lose his or her priority date upon a revocation of the I-140 based on the termination of business or its sponsorship of the beneficiary.

Validity of the Petition

The final rule also provides the criteria under which the I-140 immigrant visa petition will remain valid, even if revoked or withdrawn, for H-1B extensions, compelling-circumstances employment authorization and I-485 portability purposes. The following requirements must be met for the I-140’s validity to be retained:

• The withdrawal is filed at least 180 days after approval of the I-140;
• The I-140 petitioner’s business terminates at least 180 days after approval of the I-140; or
• The approved I-140 is associated with an I-485 that has been pending for at least 180 days.

The great advantage of maintaining an approved I-140 petition is that the beneficiary can obtain H-1B extensions beyond the maximum six-years, port to a new employer based on a pending I-485 application to adjust status, and obtain employment authorization based on compelling circumstances (as discussed in an earlier blog of mine).
H-1B Extensions beyond Six Years

The H-1B visa is the primary nonimmigrant visa that allows foreign nationals with at least a bachelor’s degree or equivalent to work in a specialty professional occupation in the US. H-1B status is normally granted for six years, although there are some exceptions to this statutory cap, including two that are based on associated applications for legal permanent residency filed on behalf of the beneficiary. The first exception allows for one-year indefinite extensions based on a labor certification or I-140 being filed at least 365 days before the end of the fifth year of the H-1B worker’s status in the US. The second exception allows for three-year indefinite extensions based on an I-140 being approved by the end of the foreign national’s sixth year in H-1B status and on the unavailability of an immigrant visa number under the per country limitation.

The new rule will make it easier for the H-1B worker to obtain three-year H-1B extensions, since the revocation of an I-140 more than 180 days after its approval will not jeopardize the ability of the foreign worker to obtain indefinite three-year extensions. Also, the new rule codifies the existing policy that the H-1B worker can obtain an extension with a new H-1B employer based on an approved I-140 filed by a different employer.

Adjustment of Status (I-485) Portability

Adjustment of status (I-485) portability allows certain applicants for adjustment of status to port or switch to a different sponsoring employer so long as the position is in the same or similar occupation as the original PERM labor certification application (or I-140 immigrant visa petition if no PERM was required). The job location and salary can be for a different region in the US. The new rule codifies the requirement that the I-485 must have been pending for at least 180 days to secure the benefits of portability.
The underlying 140 need not also have been pending for 180 days but it must be demonstrated that it was approvable when filed and up until the 180 days that the 485 has been pending. As discussed above, the I-140 will remain valid for porting purposes even if revoked or withdrawn 180 days or more after the 140 was approved or after the associated 485 was filed.
It should be emphasized that if the beneficiary has not secured the benefits of I-485 portability (e.g. has not filed the I-485 because the priority date is not yet current or has an I-485 that has not been pending at least 180 days), then a new I-140 (and possibly PERM) must be obtained on the beneficiary’s behalf in order for the beneficiary to obtain legal permanent residency in the US.

The new rule also defines a same or similar occupation. It states that it requires either an occupation that “resembles in every relevant respect the occupation” that was the basis of the approved I-140, or an occupation that “shares essential qualities or has a marked resemblance or likeness with the occupation” that was the basis of the approved I-140. The Standard Occupational Classification (SOC) of the Department of Labor is only one factor in making this determination. The rule notes that career progression may satisfy this definition.

New Form Supplement J

To apply for I-485 portability, the new rule requires the filing of Form Supplement J instead of the AC21 letter. There is no filing fee for this form and no receipt that will be issued. The rule does not address whether one who has a pending I-485 along with a filed AC 21 letter portability letter must file the Supplement J. It could be filed or the applicant could wait for USCIS to issue a request for evidence for it.

USCIS Announces Adjustment of Status Filing Dates for January 2017

December 22nd, 2016

USCIS has announced on its website that applicants for employment-based adjustment of status must use the chart with the final action dates in the January 2017 Visa Bulletin. However, for family-based applicants, they may use the chart with the dates for filing visa applications in the January 2017 Visa Bulletin.

US Department of Homeland Security Publishes Regulations on High Skilled Foreign Workers

November 23rd, 2016

On November 18, 2016, the Department of Homeland Security published a final rule providing benefits to many highly skilled nonimmigrant workers and those workers with immigrant employment-based cases (Forms I-140) in the EB-1, EB-2 and EB-3 categories.  This final rule will become effective on January 17, 2017.  The rule is designed to provide greater certainty for US employers seeking to sponsor and retain immigrant and nonimmigrant workers who are beneficiaries of employment based immigrant visa petitions (Forms I-140) and greater stability and job flexibility for foreign workers so as to allow them to accept promotions and change positions with current employers, change employers and pursue other employment.

The following is a summary of some of some of these benefits:

  1. 10-day nonimmigrant grace periods: The final rule provides for grace period of up to 10 days  prior to the start and after the end of the authorized period for nonimmigrants in H-1B, O-1, E-1, E-2, E-3, L-1 and TN classifications.
  1. 60-day nonimmigrant grace periods: The final rules establishes a grace period of up to 60 consecutive days during each authorized period for workers in H-1B, H-1B1, L-1, O-1, E-1, E-2, E-3 and TN classificationsThis grace period allows for these nonimmigrants to change employers or their status when their employment ceases prior to the end of the petition validity period.
  1. H1B extensions of stay under AC21: The final rule addresses extensions beyond 6 years and reaffirms extensions based on labor certification applications being filed by the end of the foreign worker’s fifth year in H-1B status or a Form I-140 immigrant visa petition being approved by the end of the foreign workers sixth year in H-1B status.
  1. H-1B portability: It confirms the existing practice of allowing foreign workers to begin employment with new H-1B employers upon filing of the petition and allows H-1B employers to file successive H-1B portability petitions (“bridge petitions”).
  1. Counting against the H-1B annual cap: The rule clarifies how the counting is done and method for determining whether a petition is cap-exempt.
  1. H-1B cap exemptions: It clarifies and improves the method for determining whether cap exempt and provides for a new basis of cap exemption based on an affiliation between a nonprofit organization and an institution of higher education.
  1. Protections for H-1B whistleblowers: The rule allows H-1B nonimmigrant workers who provide information to help investigations regarding alleged Labor Condition Applications (LCA) obligations to provide evidence showing that their failure to maintain H-1B status was due to extraordinary circumstances.
  1. Form I-140 petition validity: The rule clarifies the circumstances under which the Form I-140 immigrant petition for  alien workers remains valid even after the I-140 petitioner withdraws the petition or terminates business, including for purposes of H-1B extensions, H-1B portability and I-485 portability under INA 204(j).
  1. Establishment of priority dates: The rules states that priority dates are generally established based on the filing of certain petitions and applications (consistent with existing DHS practice).
  1. Retention of priority dates: The rule enhances job portability for workers who are beneficiaries of approved Form I-140s, clarifies which workers may retain priority dates and transfer those dates to subsequently approved I-140s.  The priority date will generally be retained as long as the original Form I-140 is not revoked based on material error; fraud or willful misrepresentation of a material fact; or invalidation or revocation of a labor certification application.  This allows certain workers to be promoted without losing their place in the line for immigrant visas.
  1. Retention of validity of employment-based immigrant visa petitions: The rules states that Form I-140 immigrant visa petitions approved for 180 days or more would no longer be subject to automatic revocation based solely on the withdrawal by the petitioner or termination of business.
  1. INA 204(j) adjustment of status portability: The rule allows certain workers who have pending Forms I-485 applications to adjust status to change employers or jobs without jeopardizing the approved Form I-140 petition on which they are the beneficiary.
  1. Eligibility for employment authorization in compelling circumstances: The rule would allow for such employment authorization for the principal beneficiary in E-3, H-1B, H-1B1, L-1 or O-1 status (and the spouse and dependents) of an approved I-140 and even when the Form I-485 application to adjust status has not yet been approved. Compelling circumstances must be demonstrated.
  1. Adjudication of employment authorization documents: The rule clarifies that USCIS no longer must adjudicate an employment authorization document (EAD) within 90 days.  However, USCIS will also allow those with timely filed EAD applications an automatic EAD extension of up to 180 days so long as the EAD renewal is based on the same category.