August 2017 Visa Bulletin: EB2 Worldwide Category Retrogresses

July 12th, 2017

The U.S. Department of State (DOS) released the August 2017 Visa Bulletin today showing a retrogression of the employment-based second preference EB2 worldwide category to April 1, 2015. It notes that it won’t become current again until October 1, 2017. The EB2 category for India is at July 22, 2008, and for China April 22, 2013. The EB1 category remains backlogged for India and China with a cutoff date of January 1, 2012, but the EB1 worldwide category remains current. The EB3 worldwide category remains current and the EB3 category for China is at January 1, 2012, and at July 15, 2006, for India.

Applicants for adjustment of status who have a priority date earlier than the date in the ‘Final Action Dates for Employment-based Preference Cases’ chart may file their Forms I-485. Applicants for immigrant visas may use the ‘Dates for Filing of Employment-based Visa Applications’ chart.

Maintaining Legal Permanent Residency

June 26th, 2017

Legal permanent residency can be abandoned if the foreign applicant is outside the US for long periods of time and/or does not treat the US as his or her primary home. If the legal permanent resident (LPR) leaves the country for more than six months there is a presumption that such status has been abandoned and the LPR must prove otherwise to US government authorities, including showing that the LPR has maintained the US as his or her primary home. Once the LPR has been outside the U.S. for more than one year, then the LPR will not be able to reenter with his or her alien registration card and the government will deem such status abandoned.

However, there are exceptions to this rule. First, if the LPR applies for a reentry permit before he or she leaves the U.S., then the LPR may reenter the U.S. with this document for up to two years from the date of his or her departure from the U.S. Second, if the LPR seeks readmission into the U.S. more than one year after his or her departure and did not apply for the reentry permit, then the LPR may be able to obtain a special immigrant visa at a U.S. consulate abroad. If the LPR will not return to the U.S. within two years, then the LPR will also need to obtain a special immigrant visa at a U.S. consulate abroad. When making an application for a special immigrant visa, the LPR must establish that he or she has not abandoned legal permanent residence and has still treated the US as his or her primary home while outside the U.S. Evidence of maintaining legal permanent residence in the U.S. includes filing resident tax returns; maintaining a valid driver’s license; holding credit cards and bank account/s and owning property.

The reentry permit does not guarantee the LPR’s readmission into the US. It merely certifies that the U.S. government has accepted the LPR’s trip as temporary, i.e., that the LPR maintained legal permanent residency despite a lengthy absence. As a result, if the LPR has a reentry permit, then the LPR cannot be denied readmission into the U.S. solely on the duration of his or her absence. However, the LPR may still be deemed inadmissible under some other ground of exclusion (e.g. commission of certain crimes). If the LPR fails to pay US residence income taxes (on his or her worldwide income, not just U.S. source income) during his or her period of absence, this demonstrates an intent contrary to the required intent of a legal permanent resident and the LPR may be considered to have abandoned legal permanent residency despite the reentry permit.

Also, if the LPR commits activity that deems him or her inadmissible to the US, then the LPR may be stopped at the border when trying to reenter the US. Grounds of inadmissibility include the commission of certain crimes. However, the LPR may be eligible for a waiver of the ground of inadmissibility. Also, after acquiring legal permanent residency, the LPR is still subject to removal (deportation) for certain activity, such as drug-related offenses, aggravated felonies, crimes of violence, etc. The LPR may be eligible for relief from removal should he or she be placed in removal proceedings. However, once the LPR becomes a U.S. citizen, then he or she will not be inadmissible at the border or removable for certain activity.

The LPR may apply for naturalization three months prior to five years after the approval date of your legal permanent residency. If the LPR obtained legal permanent residency based on marriage and continues to live with the spouse sponsor, then the LPR may apply three months prior to the three year anniversary. Applying for a reentry permit does not negate the effect of a lengthy absence on the LPR’s ability to meet the naturalization requirements. Two of the naturalization requirements are the maintenance of legal permanent residency during the requisite three or five-year period (maintaining the US as his or her primary home) and physical presence for at least half of the three or five-year period (with certain exceptions). An absence of fewer than six months does not break an LPR’s continuity of residence; an absence of six months or more but less than one year breaks the continuity of residence unless the LPR can provide a reasonable explanation for his or her absence (an overseas assignment is most uniformly accepted); and an absence of one year or more automatically breaks the continuity of legal permanent residence (with certain exceptions for employment abroad).

Finally, the foreign national should keep track of all trips made outside the US until becoming a US citizen. The naturalization application requires that the applicant note each and every trip made since becoming a legal permanent resident with the date the applicant left and the date the applicant returned and all of the countries visited.

USCIS Announces Adjustment of Status Filing Dates for July 2017

June 23rd, 2017

US Citizenship and Immigration Services (USCIS) has announced the filing dates for applicants for adjustment of status to legal permanent residency for July 2017. Both applicants for family and employment-based cases must use the “Final Action Dates” chart in the Department of State Visa Bulletin for July 2017 (https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-july-2017.html).

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.