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.

US Department of State Visa Bulletin for November 2016 and Future Projections

October 18th, 2016

According to Charles  Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, the following are his predictions for immigrant visa number movement from November 2016:

EB-1 China, EB-1 India, and EB-1 Worldwide:  These categories will remain current in November and for the foreseeable futureA retrogression of the EB-1 category is not expected for the first half of the fiscal year.

EB-2 Worldwide:  This category will remain current in November and retrogression is not expected in the foreseeable future. It is likely that EB-2 India will advance at a four month pace and that in November, EB-2 India will advance nine months to November 1, 2007. Also, it is predicted that numbers will continue to advance in this category for the foreseeable future.

EB-2 China:  This category moved forward by four months to July 15, 2012, and it is likely to reach at least September 2012 by February 2017.

EB-3 China:  This category advanced three months to April 15, 2013. EB-2 China was previously up to September 2012, and is likely to recover to that date no later than February 2017.

EB-5 China:  This category advanced two weeks, with a November final action date of March 8, 2014. Since this category was only temporarily reauthorized, absent congressional action prior to issuance of the December Visa Bulletin, the EB-5 China Regional Centers will most likely see it as “unavailable” for December. If that occurs, the DOS will provide guidance as to the final action date.

EB-4 El Salvador/Guatemala/Honduras:  This category advanced to July 15, 2015.  However, any forward movement in the final action date will be slow.

EB-4 India and EB-4 Mexico:  These categories remain current.

Retaining Priority Date of I-140 Immigrant Visa Petition for Green Card Case

April 10th, 2014

The beneficiary of an approved Form I-140 immigrant visa petition in the EB-1, EB-2 or EB-3 employment-based category may retain the priority date of this petition for all subsequent I-140 petitions filed on his her behalf in the EB-1, EB-2 or EB-3 category.  This could significantly reduce the processing time to obtain legal permanent residency (the green card).  This applies even where the I-140 petition has been revoked after its approval.  The exception, where the revocation results in a loss of the priority date for this petition, is where there was fraud or misrepresentation.

The priority date is the beneficiary alien’s place in line for an immigrant visa number to apply for legal permanent residency.  It is either the date that the PERM labor certification application (Form ETA 9089) is filed with the Department of Labor, or if the PERM process is bypassed for those outstanding ability aliens, the date the Form I-140 immigrant visa petition is filed.  There are 140,000 employment-based visa numbers allocated each year equally to each country worldwide.  For those countries whose number of foreign nationals applying for a visa number exceeds the visas allotted to that country, such as India and China, a backlog results and these applicants are assigned a place in the line (the priority date).

Especially for those from India or China, or those in the EB-3 worldwide category, in which case immigrant visa numbers are not current and there is a long wait for them, retention of a priority date is a boon.  For example, let’s take an Indian software engineer with an I-140 approved on her behalf in the EB-3 category and with a priority date of September 1, 2009.  If she changes H-1B employers, leaving the employer that obtained the I-140 for her, she can retain the priority date from that petition and use it in her second PERM labor certification-based green card case at her subsequent employer.  If that second employer obtains a certified PERM application on her behalf in 2013, which has a priority date of 2013, then when filing its I-140 on her behalf it can instruct USCIS to accord its I-140 the priority date of the first 140 petition.  Even if the beneficiary’s first I-140 is revoked (except for fraud or misrepresentation), she can still retain the priority date.

US Supreme Court Invalidates Defense of Marriage Act (DOMA)

July 1st, 2013

On June 26, 2013, in United States v. Windsor, the US Supreme Court struck down the Defense of Marriage Act (DOMA) as unconstitutional.  This discriminatory act denied same sex couples the benefits of marriage accorded to heterosexual couples.  With this groundbreaking decision, an individual in a same sex marriage may now sponsor his or her spouse for legal permanent residency.  The Secretary of Homeland Secretary Janet Napolitano has issued a statement that the US Department of Homeland Security (DHS) will work with the US Department of Justice and other federal agencies to ensure the fair administration of immigration laws.

Seventh Circuit Holds No Duty to Mitigate Under I-864 Affidavit of Support

August 3rd, 2012

In Liu v. Mund (7th Circuit, June 22, 2012), the Seventh Court Court of Appeals held that there is no duty for the alien to mitigate damages in order to maintain the Form I-864 affidavit of support provisions.  Mund married Liu and he sponsored her for legal permanent residency.  Pursuant to the Immigration and Nationality Act (INA), Mund as the sponsor was required to execute a Form I-864 affidavit of support (8 USC §1182(a)(4)(A)), which is a an enforceable contract between the sponsor and the US government.  Pursuant to this contract, the sponsor must maintain the beneficiary at 125% of the Federal poverty guidelines.  The affidavit of support terminates upon the sponsor’s or the beneficiary’s death, the beneficiary’s being employed for 40 qualifying work quarters or the beneficiary leaving the US permanently.   The statute does not list the alien’s failure to see work or otherwise mitigate his or her damages as an excusing condition.  Mund and Liu divorced and the divorce court held that Mund was not liable under the contract if Liu did not mitigate damages by seeking work.

The Circuit Court held that failure to mitigate damages is not a defense to the support obligation of the affidavit of support.  It found that the statute and the affidavit are silent on the issue and that “neither Congress . . . nor the immigration authorities . . . ever thought about mitigation of damages.”  Id. pp 5-6 (No. 11-1453).  It found that the stated goal of the statute was to “prevent the admission to the United States of any alien who “is likely at any time to become a public charge.”  Id. at 7. It stated that the absence of the duty would benefit the sponsor when the purpose of the duty was to protect the US taxpayers and organizations that provide charity to the poor.  It also found that the duty to support serves the statutory objective of making the prospective sponsors “more cautious about sponsoring immigrants.”  Id.

Unused Visa Numbers for EB-2s from India and China

April 7th, 2011

The US Visa Office has recently announced that 12,000 unused immigrant visa numbers will be made available to the EB-2 category and for the thousands of seekers of legal permanent residency to the US. Ultimately, these numbers will be assigned to those EB-2 visa applicants from India and China whose priority dates fall within the 2006 calendar year, and 75 percent of these will be granted to those from India.

There are 140,000 immigrant visa numbers available each year to apply for legal permanent residency based on employment, and this process occurs either through consular processing abroad or adjustment of status in the US. Each country is accorded seven percent of that total regardless of its population size and demand from that country. There are five employment-related preference categories and each is granted a certain percentage of that number. The EB-2 (second preference) classification, for positions requiring at least a master’s degree or a bachelor’s degree plus five years of progressive experience, is allocated 28.6 percent of the total visa numbers.

When a visa applicant starts the legal permanent residency process through either a PERM labor certification application or an I-140 immigrant visa petition, that applicant’s filing date is his or her priority date (place in line). Priority dates are assigned within each preference category without regard to the particular country of chargeability, except for countries that expect to exceed the seven percent limit. Applicants who are chargeable to such countries are allocated visa numbers within preference categories.

India and China are expected to exceed the seven percent limitation in fiscal year 2011. This means that even though there are sufficient visa numbers to provide to current EB-2 applicants from countries worldwide (in other words, there will be no backlogs or delays for those applicants to apply for legal permanent residency), those EB-2 applicants from India and China are subject to a cut-off date of 2006. Only those Indians who have a priority date before May 8, 2006, and those Chinese who have priority dates before July 22, 2006, will be able to apply for legal permanent residency.

Fortunately, there is good news on the visa number front in terms of a plethora of unused numbers that can be allocated to the EB-2 category for India and China. The Visa Office has announced that it estimates that 12,000 extra visa numbers will be available for the EB-2 category this year. US law requires that any unused employment-based visa numbers be used without regard to the seven percent per-country limitation. Because the current EB-2 availability for other countries is sufficient to meet demand, the 12,000 numbers will be used by China and India.

In particular, these numbers will be allocated to those approximate 17,400 EB-2s from India and China with a priority date that is within the 2006 calendar year. These were predominantly the applicants who filed to adjust status in July and August 2007 when the Visa Bulletin was current for all countries but whose applications could not be approved because numbers retrogressed during processing. Because most of the 17,400 applicants were Indians (13,200) and the older priority dates are from India, India will most likely get around 75 percent of those numbers.

As emphasized by Jay Solomon, author of “EB-2 Story: India, China and the “Otherwise Unused Employment Visa Numbers – Is the Visa Office Discriminating Against China” published on AILA Infonet (Doc. No. 11040634) and also available at http://www.usimmlaw.com/EB2Story.htm April 2011, there is no discrimination against China in US policy, since it is US law that visa numbers be accorded based on a person’s priority date or place in line, not on a person’s nationality or country of birth. Although it has a practical disproportionate effect on Indian applications, the law neither favors or penalizes any particular country.