Ari Sauer: The Immigration Answer Man

My wife has a two-year conditional green card. What happens if we divorce?

2011-05-19T17:49:00.001-05:00

QUESTION:

I am a U.S. citizen. I sponsored my wife for a green card and she received a two-year temporary green card. My wife is supposed to apply for a permanent green card before the end of the two years, but we are separated and will be divorcing. Do I have an obligation to continue to sponsor my wife to get her permanent green card even though we are divorcing? Will I have a financial support obligation after the marriage ends?

IMMIGRATION ANSWER MAN:

Your wife received a two-year conditional green card because you were married less than two years at the time she was granted permanent residence. She is required to apply to have the condition removed during the 90 day period before her green card expires. If she is married at that time, she would file an application to remove the condition from her residence by filing a joint application with you, her husband. The point of this application is to show that this was a bona fide marriage and she did not get married for the sole purpose of receiving a green card. However, if the marriage falls apart before she obtains her 10-year unconditional green card, then she will need to file an application requesting a waiver of a joint application to remove the condition. She would file this application after her divorce is finalized, and it does not require the ex-spouse, you, to apply jointly with her. So you do not have an obligation to join your wife in her application to remove the condition from her residence. She will file a waiver application after your divorce is finalized.

But, even though you divorce, you will still be obligated under the Affidavit of Support you filed on behalf of your wife. Whether or not this requires you to provide financial support for your wife after the marriage is a matter of debate in the courts. But if your wife obtains certain welfare-type benefits, it is clear that the U.S. government can sue you for the amount paid out to her. The obligations under an Affidavit of Support continue until she becomes a U.S. citizen, until you can show that she has worked for at least 40 quarters in the U.S., or until one of you dies.

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Ari Sauer is an attorney with SiskindSusser, PC. For Ari’s full bio, visit http://www.visalaw.com/ari.html.You can schedule a consultation with Ari or with one of Siskind Susser’s otherattorneys by calling 1-800-343-4890 or 901-682-6455.

* Due to the volume of questionsreceived, not all questions can be answered. On this blog we answer questionsas a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations areconstantly changing. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of New York and New Jersey. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

If my child is born in the U.S. does that mean I can stay in the U.S. when my visa expires?

2011-05-18T16:40:00.001-05:00

QUESTION:

My wife and I are in the U.S. in L status. We are about to have a child in the U.S. Since our child will be a U.S. citizen, does that grant us any immigration rights? Are we entitled to stay in the U.S. until our child is old enough to take care of themselves?

IMMIGRATION ANSWER MAN:

It is true that (with a few exceptions) a child born in the U.S. is granted U.S. citizenship even if the child’s parents are in the U.S. in nonimmigrant status or even out of status. But having a U.S. citizen child, by itself, does not grant the child’s parents any immigration benefits. The idea of the “anchor baby” is a myth. Even though your child is a U.S. citizen and therefore has a right to live in the U.S., you and your wife do not. You must maintain your L nonimmigrant status and extend or change/adjust your status as necessary. When your child turns 21, then they can petition for you and your wife to become permanent residents.

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Ari Sauer is an attorney with Siskind Susser, PC. For Ari’s full bio, visit http://www.visalaw.com/ari.html. You can schedule a consultation with Ari or with one of Siskind Susser’s other attorneys by calling 1-800-343-4890 or 901-682-6455.

* Due to the volume of questions received, not all questions can be answered. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of New York and New Jersey. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

My green card was stolen and I need to travel outside the U.S. soon. How do I renew my green card in time for my trip?

2011-05-17T16:59:00.001-05:00

QUESTION:

My purse was stolen along with my green card. I wanted to take a trip abroad this Summer, but I can't travel without my green card. Can I replace my green card in time to travel this Summer? I am eligible to apply for naturalization. Would it be quicker to become a citizen?

IMMIGRATION ANSWER MAN:

In order to travel abroad, you will need to file an application to replace your stolen green card. If you have not already done so, you should file a police report on your stolen purse. USCIS often likes to see a copy of the police report when a Permanent Resident claims their green card has been stolen.

Right now it is taking about 3 and 1/2 months for USCIS to replace a lost green card. If you need to travel before then you can get an I-551 stamp put in your passport. The I-551 stamp is temporary proof of Permanent Residence. To get the stamp you will need to make an Infopass appointment at your local USCIS office. You will need to bring your receipt notice that you will receive for the application, your passport, and proof of your upcoming trip such as a copy of your ticket. Some USCIS offices will not grant the stamp more than 30 days before the trip.

If you have lost your green card or had it stolen, or if your green card has expired, you will need to file an application to renew or replace your green card before you can apply for naturalization. You do not have to wait for the new card to apply for naturalization. You can file the application for naturalization with the receipt notice from the application to renew or replace your green card.

Join me on Facebook at http://bit.ly/3iM38W

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Ari Sauer is an attorney with Siskind Susser, PC. For Ari’s full bio, visit http://www.visalaw.com/ari.html. You can schedule aconsultation with Ari or with one of Siskind Susser’s other attorneys bycalling 1-800-343-4890 or 901-682-6455.

* Due to the volume of questions received, not all questions can be answered. On this blog we answerquestions as a service to our readers, but we cannot assume any liabilityrelated to reliance on anything herein, and responses to questions are notintended to establish an attorney-client relationship. Immigration laws andregulations are constantly changing. Readers are cautioned to schedule aconsultation with an immigration lawyer before acting on anything stated inthis blog. This blog is not intended to substitute for a consultation with aqualified immigration law attorney. Ari Sauer is licensed to practice law through the states of New York and New Jersey.Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practicearea, and we do not claim expertise in the laws of states other than where ourattorneys are licensed.

I have H-4 status. If I want to go to school do I need to change to F-1 status?

2011-05-16T12:09:00.001-05:00

QUESTION:

I am currently on H-4 visa. I want to go back to college. Do I need to change to an F1 visa?

THE IMMIGRATION ANSWER MAN:

H-4 status is for spouses of H-1B nonimmigrants. If your spouse will be continuing as an H-1B nonimmigrant and you are planning on remaining married, then there is no need to change your status to become an F-1 (student) nonimmigrant. While the F-1 status does allow you to attend SEVIS authorized schools, so do many other statuses. As an H-4 nonimmigrant, you are eligible to attend school, even though you are not eligible for employment authorization. In fact, as an H-4 your options for educational programs are broader, since you are able to attend schools that are not on the SEVIS list and you are not required to take a full course load. Also, as an H-4 you can change schools without having to receive SEVIS authorization first.

For more information on the F-1 student visa and SEVIS, visit http://www.visalaw.com/03jan3/2jan303.html and http://www.visalaw.com/03jan4/2jan403.html

Join me on Facebook at http://bit.ly/3iM38W

Connect with me on LinkedIn at http://www.linkedin.com/in/arisauer

Connect with me on Twitter at http://twitter.com/VisaLawAnswers

Ari Sauer is an attorney with SiskindSusser, PC. For Ari’s full bio, visit http://www.visalaw.com/ari.html. You can schedule aconsultation with Ari or with one of Siskind Susser’s other attorneys bycalling 1-800-343-4890 or 901-682-6455.

* Due to the volume of questions received, not all questions can be answered. On this blog we answerquestions as a service to our readers, but we cannot assume any liabilityrelated to reliance on anything herein, and responses to questions are notintended to establish an attorney-client relationship. Immigration laws andregulations are constantly changing. Readers are cautioned to schedule aconsultation with an immigration lawyer before acting on anything stated inthis blog. This blog is not intended to substitute for a consultation with aqualified immigration law attorney. Ari Sauer is licensed to practice lawthrough the states of New York and New Jersey.Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. SiskindSusser limits its practice strictly to immigration law, a Federal practicearea, and we do not claim expertise in the laws of states other than where ourattorneys are licensed.

Why can't I sponsor my employee under the EB2 category using experience he gained with me?

2010-12-30T10:12:00.001-06:00

QUESTION:

I have been sponsoring an employee for an H1b for 3 years. He has a bachelor’s degree and he had 2 years of experience before he came to work for me. Since he now had a bachelor’s degree and 5 years experience, can I sponsor him for an eb2 petition? I have been told that his experience working for me does not count towards the 5 years, but intuitively it doesn’t make sense. That would mean that someone else can sponsor him for an eb2 but I can’t. Can you please explain this to me?

THE IMMIGRATION ANSWER MAN:

It is not just an issue of him using his experience. It is a question of what is the actual minimum requirement to perform in the position. In order to sponsor him under the EB2 category, the position has to have a minimum requirement of a masters degree or the equivalent (generally a bachelors and 5 year of post degree experience) to be able to perform the duties of the position. Since your employee has been working in the position for the past 3 years without a master’s degree or the equivalent, then clearly the job can be done without a master’s degree or the equivalent.

Under certain circumstances you may be able to sponsor the employer for a different position, if a master’s degree is required to perform the duties of the new position. And yes, other employees may be able to sponsor this foreign national for an EB2 for this position, if they can show that a master’s degree is a requirement to perform the duties of the position at their company.

In the meantime, if you file the PERM application early enough, you should be able to continue extending his H-1B until he is eligible to apply for the green card under the EB3 category.

For more information on the EB2 category, visit:

http://www.visalaw.com/05jun3/2jun305.html

For more information on the EB3 category, visit:

http://www.visalaw.com/05jun4/2jun405.html

Visit my blog, The Immigration Answer Man at www.immigrationanswerman.com

Join me on Facebook at http://bit.ly/3iM38W

Connect with me on LinkedIn at http://www.linkedin.com/in/arisauer

Connect with me on Twitter at http://twitter.com/VisaLawAnswers

Ari Sauer is an attorney with Siskind Susser, PC. For Ari’s full bio, visit http://www.visalaw.com/ari.html. You can schedule a consultation with Ari or with one of Siskind Susser’s other attorneys by calling 1-800-343-4890 or 901-682-6455.

* Due to the volume of questions received, not all questions can be answered. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of New York and New Jersey. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

If a U.S. permanent resident takes a trip abroad that lasts longer than a year are they still eligible to apply for citizenship?

2010-12-27T17:06:00.001-06:00

QUESTION:

My father has been a U.S. permanent resident since 1997. About 9 years ago he took a trip and ended up staying abroad for 4 years before returning to the U.S. He came back to the U.S. on his green card and has remained in the U.S. since then. He is planning to apply for citizenship status but worried about his 4 year absence from the US in the earlier part of his status. Should he be worried about this gap in resident status?

IMMIGRATION ANSWER MAN:

One of the requirements for applying for U.S. citizenship (or naturalization) is maintaining U.S. permanent residence for a continuous period of 5 years prior to filing for naturalization (3 years if filing as the spouse of a U.S. citizen).

Traveling abroad for a trip that lasts more than 6 months creates a rebuttable presumption that the foreign national was not maintaining their continuous U.S. permanent residence. This presumption can be overcome by showing the naturalization officer that the foreign national continued to maintain a U.S. residence despite the 6 month long trip.

However, a trip abroad that lasts longer than a year will cause an automatic break in continuous U.S. residence. This makes the foreign national ineligible for naturalization. When the person returns to the U.S., their continuous permanent residence will begin again from the day they reentered the U.S. on their green card. However, they are not required to accrue another 5 years of continuous permanent residence. Rather they only need to accrue 4 years and a day of continuous permanent residence to be eligible again for naturalization.

There is an exception to this rule. Some green card holders are eligible to file an N-470 which will allow them to maintain their continuous U.S. permanent residence despite their trip abroad of more than one year.

So since your father has been continuously maintaining his U.S. permanent residence for more than 4 years and a day since he returned from his trip, the fact that he was abroad for more than a year should not make him ineligible for naturalization.

P.S. Readers should be aware that long trips abroad of more than one year can result in a determination that the foreign national has abandoned their U.S. permanent residence resulting in the foreign national not being allowed to return to the U.S. on their green card. U.S. permanent residents are cautioned to consult with an immigration law attorney prior to any trip abroad that is expected to last more than one year, and it is recommended that they obtain a reentry permit.

Visit my blog, The Immigration Answer Man at www.immigrationanswerman.com

Join me on Facebook at http://bit.ly/3iM38W

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Ari Sauer is an attorney with Siskind Susser, PC. For Ari’s full bio, visit http://www.visalaw.com/ari.html. You can schedule a consultation with Ari or with one of Siskind Susser’s other attorneys by calling 1-800-343-4890 or 901-682-6455.

* On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states fo New York and New Jersey. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

USCIS approved the I-130 I filed for my husband. Why is he being told not to go to the visa interview?

2010-12-27T16:23:00.001-06:00

QUESTION: I am a U.S. citizen and my husband is in the U.S. illegally. I filed an I-130 and it was approved. It is my understanding the visa is available to him but my attorney advised me not to move forward with filing the Affidavit of Support or the DS-230 or go for the interview abroad. Why is this? The laws will not change for a longtime. Isn’t it better for my husband to go home and follow through with everything and appeal than to sit here in the U.S. and do nothing?

THE IMMIGRATION ANSWER MAN: This is one of those tough questions that do not have a one-size-fits-all answer. I meet couples like this all the time, where the foreign national is married to a U.S. citizen, but because they entered the U.S. without inspection, and are not eligible to be grandfathered under the 245(i) “amnesty”, they are not eligible to apply for a green card by filing for Adjustment of Status in the U.S. But since the foreign national has been unlawfully present in the U.S. for more than 6 months, they would be subject to a 3 or 10 year bar of inadmissibility if they leave the U.S.

This is one of those situations where you absolutely need an experience immigration lawyer that you trust. This is because some couples are eligible to apply for a waiver of inadmissibility based upon extreme hardship to the foreign national’s U.S. citizen or Permanent Resident spouse or parent. But extreme hardship is more than just the usual hardship caused when a married couple is separated from each other. There has to be other factors there in order for an adjudicator to determine that there is extreme hardship. Examples of additional hardship that would be considered are health issues, financial considerations, loss of opportunity for education, personal considerations such as close relatives in the U.S. and age of the parties, and other factors such as cultural, religious and ethnic obstacles. These are just some examples and as there is no limit to the type of hardship that can be shown to explain how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or permanent resident relative. The point is that each couple needs to have their particular situation assessed for the possibility of showing extreme hardship by a competent attorney they trust.

Even if you have some additional factors for hardship, there is always some risk in traveling abroad and applying for a hardship waive. There is no U.S. consulate in the world that approves all waiver applications they receive. So if you are going to apply for a waiver, you should make sure that you hire an attorney to help you put it together in the strongest way possible to increase your chances for approval. If the waiver application is denied, the foreign national will be stuck abroad.

Also, if the foreign national has entered the U.S. without inspection more than once, or has entered the U.S. without inspection after being removed by the U.S. government, then it may be that the foreign national is permanently barred from receiving a visa to reenter the U.S.

These are all factors that need to be discussed with your attorney. If you are not sure that your attorney is giving you the best advice, or that you have a stronger case for hardship than they say, then you always have the option to get a second opinion. However you should be careful to go to an attorney you trust, as some attorneys will send almost anybody abroad to apply for a waiver application. In my opinion that is much worse than an attorney who is overly conservative.

Visit my blog, The Immigration Answer Man at www.immigrationanswerman.com

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Ari Sauer is an attorney with Siskind Susser, PC. For Ari’s full bio, visit http://www.visalaw.com/ari.html. You can schedule a consultation with Ari or with one of Siskind Susser’s other attorneys by calling 1-800-343-4890 or 901-682-6455.

If I petition for my child, can her mother come with her as a derivative beneficiary?

2010-11-23T13:46:00.001-06:00

QUESTION

I am a U.S. citizen. I filed an I-130 petition for my 2 year old child. I am not married to my child’s mother yet. Can my child’s mother come to the U.S. as a derivative beneficiary to accompany my child?

IMMIGRATION ANSWER MAN

As the unmarried child of a U.S. citizen who is under 21, your child is your Immediate Relative. Beneficiaries under the Immediate Relative category cannot have derivative beneficiaries. Also, a parent cannot be a derivative beneficiary.

If you are already planning on marrying your child’s mother, you can marry her and petition for her as your Immediate Relative spouse.

Warning: U.S. citizens and Permanent Residents should never marry a foreign national solely to obtain an immigration benefit for the foreign national. There are dire consequences for doing this.

If you do not wish to marry the mother of your child, you should speak with an immigration law attorney to determine if there are other options to bring her to the U.S.

Visit my blog, The Immigration Answer Man at www.immigrationanswerman.com

Join me on Facebook at http://bit.ly/3iM38W

Connect with me on LinkedIn at http://www.linkedin.com/in/arisauer

Connect with me on Twitter at http://twitter.com/VisaLawAnswers

Ari Sauer is an attorney with Siskind Susser, PC. For Ari’s full bio, visit http://www.visalaw.com/ari.html. You can schedule a consultation with Ari or with one of Siskind Susser’s other attorneys by calling 1-800-343-4890 or 901-682-6455.

I am licensed to practice in one state. Could I qualify for an H-1B petition in another state?

2010-11-23T10:27:00.001-06:00

QUESTION:

I am a Physical Therapist and am licensed to practice in NY. Could I qualify for an H-1B petition for another state? Is it mandatory that I have a license for the state of intended employment?

IMMIGRATION ANSWER MAN:

An H-1B beneficiary must be able to show that they are eligible to begin employment in the offered position on the start date requested on the petition. For those positions where a state license is required to work in that state, such as is required for physical therapists, the petitioner must show that the PT is licensed in the state in which they will be employed. Being licensed in a different state is not sufficient unless it can be shown that the state of employment would allow the beneficiary to work on the current license.

There is an exception to this rule where the State requires the beneficiary to provide a social security number before they will issue the license, and the beneficiary cannot get a social security number until they are in H-1b status. Where the petitioner can show that the only reason the license has not been issued by the state is because of the lack of a social security number, USCIS should approve the H-1B petition for an initial period of one year.

Visit my blog, The Immigration Answer Man at www.immigrationanswerman.com

Join me on Facebook at http://bit.ly/3iM38W

Connect with me on LinkedIn at http://www.linkedin.com/in/arisauer

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Ari Sauer is an attorney with Siskind Susser, PC. For Ari’s full bio, visit http://www.visalaw.com/ari.html. You can schedule a consultation with Ari or with one of Siskind Susser’s other attorneys by calling 1-800-343-4890 or 901-682-6455.

Will my wife's family-based immigrant petition affect my employment-based immigrant petition?

2010-10-24T22:37:00.001-05:00

QUESTION:

I am in the U.S. on an H-1B and my wife is on an H-4. My company will start my residence process, probably using the EB2 category.

But, in 2006 my wife’s sister filed an I-130 immigrant petition for relative. I am not sure I am included in that request. I just see my wife's name in the Beneficiary section on the I-797.

My question is if this parallel process might affect my EB2 process, whether my wife’s sister has including me or not?

IMMIGRATION ANSWER MAN:

The two processes are parallel to each other and will not have any effect on the other. According to the Visa Bulletin, visa availability for the EB-2 preference category is current except for nationals from China and India, which are currently available for May 2006 priority dates. Visa availability for sibling petitions (F-4) are currently in 2001 for nationals of most countries.

You cannot transfer the priority date from your wife’s family-based petition to your employment-based petition.

Your name may have been included on the Form I-130 application, if you were married to your wife at the time. However the primary beneficiary is your wife, and your name would not be listed on the I-797 notice. You are still eligible to benefit from the petition as your wife’s derivative beneficiary, even if your name was mistakenly left off the application, as long as you remain married to your wife.

Visit my blog, The Immigration Answer Man at www.immigrationanswerman.com

Join me on Facebook at http://bit.ly/3iM38W

Connect with me on LinkedIn at http://www.linkedin.com/in/arisauer

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* Ari Sauer is an attorney with Siskind Susser, PC. For Ari’s full bio, visit http://www.visalaw.com/ari.html. You can schedule a consultation with Ari or with one of Siskind Susser’s other attorneys by calling 1-800-343-4890 or 901-682-6455.

On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney client relationship. Immigration laws and regulations are constantly changing. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney.

USCIS will be increasing filing fees starting November 23, 2010

2010-09-28T18:53:00.001-05:00

USCIS will be increasing filing fees starting November 23, 2010. Below is a list showing the current fees and the new increased fees. Applications filed before November 23, 2010 can still be filed with the current fees. Any applications filed on or after November 23, 2010 will be rejected if the new fee is not included.

I-90 Application to Replace Permanent Resident Card

Current Fee $290

New Fee $365

I-102 Application for Replacement I-94 Document

Current Fee $320

New Fee $330

I-129 Petition for Nonimmigrant Worker

Current Fee $320

New Fee $325

I-129F Petition for Fiancé

Current Fee $455

New Fee $340

I-130 Petition for Relative

Current Fee $355

New Fee $420

I-131 Application for Travel Document

Current Fee $305

New Fee $360

I-140 Immigrant Petition for Worker

Current Fee $475

New Fee $580

I-191 Application for Advance Permission to Return to Unrelinquished Domicile

Current Fee $545

New Fee $585

I-192 Application for Advance Permission to Enter as a Nonimmigrant

Current Fee $545

New Fee $585

I-193 Application for Waiver of Passport or Visa

Current Fee $545

New Fee $585

I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal

Current Fee $545

New Fee $585

I-290B Notice of Appeal or Motion

Current Fee $585

New Fee $630

I-360 Petition for Amerasian, Widow(er), or Special Immigrant

Current Fee $375

New Fee $405

I-485 Application to Adjust Permanent Status / Register Permanent Residence

Current Fee $930

New Fee $985

I-526 Immigrant Petition by Entrepreneur

Current Fee $1,435

New Fee $1,500

I-539 Application to Extend/ Change Nonimmigrant Status

Current Fee $300

New Fee $290

I-600/I-800 Petition to Classify Orphan as an Immediate Relative/ Application for Advance Processing of Orphan Petition

Current Fee $670

New Fee $720

I-601 Application for Waiver of Ground of Excludability

Current Fee $545

New Fee $585

I-612 Application for Waiver of the Foreign Residence Requirement

Current Fee $545

New Fee $585

I-687 Application for Status as a Temporary Resident Under Sections 245A or 210 of the INA

Current Fee $710

New Fee $1,130

I-690 Application for Waiver of Grounds of Inadmissibility

Current Fee $185

New Fee $200

I-694 Notice of Appeal of Decision Under Section 245A or 210 of the INA

Current Fee $545

New Fee $755

I-698 Application to Adjust Status from Temporary to Permanent Resident

Current Fee $1,370

New Fee $1,020

I-751 Petition to Remove the Conditions of Residence

Current Fee $465

New Fee $505

I-765 Application for Employment Authorization

Current Fee $340

New Fee $380

I-817 Application for Family Unity Benefits

Current Fee $440

New Fee $435

I-824 Application for Action on an Approved Application or Petition

Current Fee $340

New Fee $405

I-829 Petition by Entrepreneur to Remove Conditions

Current Fee $2,850

New Fee $3,750

I-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal

Current Fee $285

New Fee $285

I-907 Request for Premium Processing

Current Fee $1,000

New Fee $1,225

Civil Surgeon Designation

Current Fee $0

New Fee $615

I-924 Application for Regional Center Under the Immigrant Investor Pilot Program

Current Fee $0

New Fee $6,230

N-300 Application to File Declaration of Intention

Current Fee $235

New Fee $250

N-336 Request for Hearing on a Decision in Naturalization Proceedings

Current Fee $605

New Fee $650

N-400 Application for Naturalization

Current Fee $595

New Fee $595

N-470 Application to Preserve Residence for Naturalization Purposes

Current fee $305

New Fee $330

N-565 Application for Replacement Naturalization / Citizenship Document

Current Fee $380

New Fee $345

N-600/ N-600K Application for Certificate of Citizenship / Application for Citizenship Under Section 322

Current Fee $460

New Fee $600

Biometrics Fee

Current Fee $80

New Fee $85

Visit my blog, The Immigration Answer Man at www.immigrationanswerman.com

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I am a student on an F-1. What is the best way for me to become a permanent resident?

2010-09-21T10:35:00.000-05:00

Question:

I am a student currently in the US on a valid F1 visa. I want to immigrate to US. Could you please let me know the best way to do this?

The Immigration Answer Man:

There are a number of ways to obtain U.S. permanent residence. I couldn’t say what the best way would be for you without first speaking with you and finding out more about you.

But the most common way for an F-1 student to obtain permanent residence is through sponsorship through an employer. Usually the F-1 student will work for a company in their field on an OPT employment authorization card for up to a year after their graduation. During that time, the employer can petition for the foreign national to change their status to an H-1B, which usually begins in October.

The employer would then go through the PERM Labor Certification process to show that there are no qualified U.S. workers to fill the position. When the Department of Labor has certified the PERM application, the employer would file an immigrant visa petition under the EB-2 or EB-3 preference category.

Depending on which preference category the petition was filed under and what country the foreign national (or their spouse) is from, the foreign national may then have to wait for a visa to become available for that petition before they are able to file their application for adjustment of status (green card). The entire process usually takes at least a year and often takes 5 years or longer.

Of course, as I mentioned, there are a number of ways to obtain permanent residence, therefore you may wish to consult with an immigration law attorney to determine what would be the best process for you.

Should I be worried that USCIS wants to interview me for my employment-based I-485?

2010-09-20T12:22:00.001-05:00

Question:

I have been called in for an immigration interview for my employment-based I-485 adjustment of status. Is that normal procedure now or it is unusual for this to occur? My file has been with USCIS for over a year now since all the documents was submitted.

Also, the sponsoring company has reduced my hours drastically due to the economy but they are still sponsoring me. I found employment in the same field with a different company. Please advise me on whether this is going to be an issue.

The Immigration Answer Man:

As a general rule, employment-based applications for Adjustment of Status do not require interviews. However, USCIS has the authority to require an interview where there is some issue or fact that is in question that can be resolved by interviewing the applicant. This is commonly done where the applicant is filing for adjustment of status under the 245(i) “amnesty”. It also sometimes occurs where it has been a long time since the I-140 was approved. The fact that you have been called for an interview does not necessarily mean that there is something wrong with your application.

The fact that your company has reduced your hours could possibly be a problem. While there is no requirement to work for the petitioning company prior to being granted adjustment of status, there is a requirement that the petitioning company continue to have an intent to employ you pursuant to the I-140 petition. The fact that the company is not employing you for the hours and salary specified in the I-140 calls into question whether the company intends to employ you for the listed hours once you are granted adjustment of status and whether the company has the ability to pay the proffered wages.

You should consult with an immigration law attorney right away to find out if this issue can be overcome, or whether you would be eligible to port your petition to the new employer.

Visit my blog, The Immigration Answer Man at www.immigrationanswerman.com

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I have a DREAM of enlisting in the U.S. military and becoming a U.S. citizen.

2010-09-15T17:22:00.000-05:00

Question:

I came to the U.S when I was 3yrs old. I am now 18. I am undocumented and was wondering if I can join the military? I'm pretty sure the answer is no. However I've met a couple of people who where in the same situation as me once and they are now residents. What can I do?

The Immigration Answer Man:

Currently it is the policy of the U.S. military to only allow U.S. citizens and U.S. permanent residents to enlist in the military. There are a limited number of exceptions made where the foreign national has a rare skill so that it would be in the national interest to allow the person to enlist. However, officially these exceptions do not apply to undocumented foreign nationals.

Unofficially, some recruiters do allow undocumented foreign nationals to enlist either because the recruiter ignored the fact that they were undocumented or because the foreign national used fraudulent documents to enlist.

The immigration laws do allow for expedited naturalization for a foreign national that serves during a time of war, even if the foreign national is not a U.S. permanent resident. However the military often takes the stance that foreign national who lie to enlist should be dishonorably discharged and therefore are not eligible to naturalize. This results in mixed results with some foreign nationals receiving citizenship while others get deported, sometimes with other family members.

However there is some hope on the horizon. Congress is currently debating the DREAM Act, which has been added to the Defense Authorization Bill. If passed, the DREAM Act will allow for many young foreign nationals in your situation to qualify for a path toward legalization and U.S. citizenship, through service in the military or college graduation.

Even if the DREAM Act does not pass in this bill, there are many of us in the immigration community that are hopeful that eventually the DREAM Act will become a reality.

Can I change my I-140 from the EB3 category to the EB2 category?

2010-09-14T17:26:00.002-05:00

Question:

I have an H1-B. I also have a greencard application which is pending based upon an I-140 that was filed under the EB3 category, with a priority date from 2006. The I-140 was filed for the position of Supervisor when I only had a Bachelors degree. I have since earned an MBA and have been promoted to the position of Manager. Am I now eligible to change my application from the EB3 category to the EB2 category since now I have a Master's degree and a different role within the company?

Immigration Answer Man:

While you cannot change the category of the current petition, it may be possible for your company to file a new PERM application and immigrant petition (I-140) for you under the EB2 category.

The question is whether the new position requires an MBA or the equivalent. Not only must you have a Masters degree or the equivalent, but the position must also require your Masters degree as a minimum qualification for the position. So if your position requires an MBA, it may be possible for your company to reapply for you under the EB2 preference category. But if you did not receive the MBA until after you started in the new position you are going to have a hard time showing that the MBA was required for the position, since you did not have the MBA when you started in the position.

Even if the new position is eligible to be filed under the EB2 category, since the original PERM application was filed under the EB3 category, your company will have to go through the PERM process again advertising the new position with the requirement of an MBA or the equivalent for the position. But if the original I-140 petition has been approved, you should be able to retain the priority date from the original petition to be counted toward the new petition.

5 Myths About Immigration

2010-05-03T16:33:00.000-05:00

The Washington Post posted an op-ed by Doris Meissner, senior fellow at the Migration Policy Institute, who served as commisioner of the INS from 1993 to 2000, where Ms. Meissner addressed 5 common myths about U.S. immigration.

5 Myths About Immigration

This article addresses the following myths about immigrants and U.S. immigration.

1) Immigrants take jobs from American Workers
2) Immigration is at an all-time high, and most new immigrants came illegally
3) Today's immigrants are not integrating into American life like past waves did
4) Cracking down on illegal border crossings will make us safer
5) Immigration reform cannot happen in an election year.

Can a company ask an employee to pay for the costs for the company to sponsor the employee for an H-1B visa?

2010-04-29T11:34:00.000-05:00

QUESTION:

Can a company ask an employee to pay for the attorney fees and filing fees for the company to sponsor the employee for an H-1B visa?

ANSWER:

There are several fees and costs associated with a company filing an H-1B petition. These include the legal fees, various expenses such as the cost of translations, and filing fees. There are several filing fees: 1) the I-129 filing fee (currently $320); 2) the Fraud Prevention Fee ($500 one-time fee); 3) the Training Fee ($750 or $1,500 depending on the size of the company); and 4) the Premium Processing Fee (an optional $1,000 fee to have the petition adjudicated in 2 to 6 weeks).

These costs are the responsibility of the company. In part, these costs are a penalty put on the company to make the H-1B less attractive so that companies will be more inclined to hire a U.S. worker rather than an H-1B employee. However, under certain circumstances some of the costs can be paid by the employee.

First, the company must pay the Fraud Prevention Fee and the Training Fee.

Second, the employee may not pay any of the other costs if it would bring the employee’s wage below the Required Wage.

All H-1B employees must be paid no less than a Required Wage. The Required Wage is the higher of either the local Prevailing Wage for the position, generally as determined by the DOL, or the Actual Wage paid to other employees of the company in comparable positions. This rule is required so that companies do not hire H-1B employees at a lower wage than they would hire U.S. workers, thereby suppressing wages.

The costs paid by the employee toward the H-1B petition will be counted as a reduction in the employee’s wages. This final wage must not be lower than the Required Wage.

USCIS is now conducting site visits for many H-1B employers and part of their questioning is about who paid the costs for the employee’s H-1B petition.

For more information on the H-1B visa, go to our ABC's of Immigration section where you can read articles these topics:

H-1B Overview

The H-1B Cap

H-1B Flowchart

The Labor Condition Application

And if you wish to discuss the particulars of your case, you can schedule a consulation appointment with me by calling 901-682-6455.

Where can I find information on marches being held on May Day for Immigration Reform?

2010-04-28T10:31:00.001-05:00

On May 1st, May Day, there will be rallies and marches held throughout the U.S. to let Congress know that our immigration system is broken and we need Comprehensive Immigration Reform to fix it. You can find a listing of rallies and marches on the Reform Immigration for America website at:

List of Pro-Immigration Reform Rallies

How can the Arizona police tell if someone is "reasonably suspicious" of being in the U.S. in "illegal" status?

2010-04-27T10:50:00.007-05:00

Usually I answer the questions posed by my readers myself. But in this case I beleive that comedian John Stuart has given the best explanation so far of how Arizona police will know when they should ask someone to provide immigration documentation because there is a reasonable suspicion that they are in the U.S. illegally.

The Daily Show on the Arizona Immigration Law

This blog has moved

2010-04-23T14:39:00.001-05:00

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Am I required to tell immigration about an arrest even if it was an unlawful arrest?

2010-04-22T11:41:00.001-05:00

QUESTION:

I was imprisoned in my home country for protesting against the dictorial regime. When I applied for asylum, I answered 'yes' on the question asking if I had ever been arrested.

But when I applied for my green card I answered 'no' to the question of whether I had ever been arrested for breaking or violating a law because the arrest itself was illegal.

Now I am applying for U.S. citizenship. Do I have to answer 'yes' to the question of whether I have been arrested? Will it be a problem that my answers on my asylum application and green card application were different?

ANSWER:

With the naturalization application, it is always best to err on the side of being too honest, as the easiest way for a USCIS officer to deny an application is to show that the applicant was not truthful in the application. A denial on this basis will mean that the applicant will have to wait another 5 years (3 years if you are applying as the spouse of a U.S. citizen) before being able to file again.

If you have ever been arrested, detained, ticketed, or given a citation for any reason you should check yes in answer to the question on the N-400. This is true even if it was an unlawful arrest or detention, if it happened in a different country, if the charges were dismissed, if no charges were ever brought, or if the arrest records were expunged. You can include an explanation of the arrest on the application and you will be given a chance to explain the arrest at the interview.

In this situation you should also answer yes to the question about whether you ever gave false or misleading information when applying for an immigration benefit. This is because you did not mention the arrest on the green card application. As I said, it is best to err on the side of being overly honest on the naturalization application. Again you can include an explanation in the application and will be able to explain at the interview.

10 Tips to Avoid Employment Discrimination

2010-03-08T17:03:00.000-06:00

Employers are required to complete an I-9 form for each employee and should only hire employees who are authorized to work in the U.S. But it is very easy for companies to be so afraid of hiring unauthorized workers that they discriminate against employees based on their race or national origin, which can create an even bigger liability for the company. So the Department of Justice has issued the following list:

TEN TIPS FOR AVOIDING EMPLOYEE DISCRIMINATION

1. Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.

2. Examine and accept original documents that reasonably appear genuine and relate to the employee.

3. Do not demand different or additional documents as long as the documents presented prove identity and work authorization, are listed on the back of Form I-9, and appear genuine.

4. So long as the job applicants are authorized to work in the U.S., avoid requiring job applicants to have a particular citizenship status, such as U.S. citizenship or permanent residence, unless mandated by law or federal contract.

5. Give out the same job information over the telephone to all callers, and use the same application form for all applicants.

6. Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees.

7. Complete the I-9 form and keep it on file for at least 3 years from the date of employment or for one year after the employee leaves the job, whichever is later.

8. On the I-9 form, verify that you have seen documents establishing identity and work authorization for all your new employees- U.S. citizens and noncitizens alike- hired after November 6, 1986.

9. If reverification of employment eligibility becomes necessary, accept any valid documents your employee chooses to present- whether or not they are the same documents the employee provided initially.

10. Be aware that U.S. citizenship, or nationality, belongs not only to persons born within the 50 states, but may also belong to persons born to a U.S. citizen outside the U.S. Persons born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, or Swains Island also are U.S. citizens or nationals. Finally, an immigrant may become a U.S. citizen by completing the naturalization process.

If I have a bachelors degree and five years experience with my company can I qualify for an EB-2 immigrant petition?

2010-02-25T21:01:00.000-06:00

QUESTION:

I have a little over 5 years of work experience in my field and I have a Bachelors degree. Of the 5 years, 2 years of experience is from my current employer. Am I eligible to have my company file a PERM Labor Certification filing for me in the second preference (EB2) category?

ANSWER:

The second preference employment based category (EB2) is for those foreign national workers who are working in a position that requires a masters degree or the equivalent as the minimum requirement. A combination of a bachelors degree and 5 years experience after the degree is considered by the Department of Labor to be the equivalent of a masters degree.

You probably do not have 5 years counting toward an EB-2 PERM Labor Certification. As a general rule, the 5 years must be from a different company. Since you did not have 5 years experience when you started in the position, you cannot claim that the position requires at least 5 years experience.

However, experience with the company can sometimes be counted when it can be shown that the experience gained has been in other positions which are not substantially similar to the position that is being offered in the PERM application or where it can be shown that it is no longer feasible for the company to train an employee for the position.

The PERM process is complicated, long, expensive and the slightest mistake can lead to a denial. It is highly recommended that companies hire an experienced immigration law attorney to handle their PERM applications.

* This information is for educational purposes only and should not be relied upon as legal information. A qualified immigration law attorney should be consulted before relying on this information. Immigration laws and regulations change frequently. This information is not intended to create an attorney client relationship.

Can you work for another employer at the same time as you work for your H-1B employer?

2010-02-18T18:30:00.000-06:00

QUESTION:

I have an employee who is currently in his first year of an H1-B visa. He would like to do some part-time work consulting for a university, in the same field as his work here. Could he do that without filing any further paperwork?

Someone here in our HR has suggested that he would have to file for
another H1-B visa to work at the other company. Another person said that since his work would be in the same field as his work here, it would be legal without further paperwork.

The reason for the work is that it would allow him to finish a Ph.D. which he started at the university.

ANSWER:

The H-1B only allows the beneficiary to work for the H-1B petitioner. Any unauthorized work for other employers is a violation of the status and would result in the person falling out of status.

However, there is no problem with having more than one H-1Bs at the same time as long as the person is maintaining the requirements for both H-1Bs.

The other university has to file an H-1B petition for him.

* This information is for educational purposes only and should not be relied upon without first consulting with a qualified immigration law attorney. Immigration laws change frequently. The reader relies on this information at their own risk. This information is not intended to create an attorney client relationship. If you wish to schedule a consultation with attorney Ari Sauer, you can do so by calling (901) 682-6455 or emailing asauer@visalaw.com.

There is a mistake on my I-94 card. How do I fix it?

2009-11-20T08:58:00.000-06:00

Question: I am working in the U.S. on an H-1B visa. I have traveled abroad several times. I was looking at my I-94 card recently and saw that even though I came into the U.S. in May of this year, the expiration date on my I-94 says it expires in 2008. How do I have this corrected?

Answer: With the large number of I-94 Entry Exit Documents issued each year, sometimes Customs and Border Protection officers do write down the wrong expiration date on an I-94. It is important to correct these errors, as the I-94 is the document that controls a person's status within the U.S.

Luckily, it is fairly simple to have an error corrected on an I-94 card issued at a port of entry. You can do this at your local CBP office. You do not have to go back to the port of entry that issued the I-94. Any CBP office can make the correction. I recommend that you call the CBP office first as most offices will only allow you to come on certain days or by appointment only. You can find you local CBP office at http://bit.ly/4mA03c.

If a woman who is a U.S. Permanent Resident has a child while outside the U.S. is the child a Permanent Resident?

2009-11-18T13:19:00.002-06:00

Question: My wife and I are U.S. Permanent Residents. I have been spending a lot of time outside the U.S. due to work. My wife and I recently had a baby girl while outside the U.S. What is the baby's status? Is she a Permanent Resident like us, or do we have to file a petition for her to become a Permanent Resident?

Answer: This is a important question, because depending on whether or not this is handled correctly, this could be a very simple process, or it could have tragic results.

There is a little-known rule in the immigration regulations that says that where a Permanent Resident woman gives birth abroad, the child is eligible to be admitted to the U.S. as a Permanent Resident, but only if the mother is 1) returning to the U.S. as a Permanent Resident and 2) brings the child with her on her first trip back to the U.S. after the child is born and 3) this trip is before the child's 2nd birthday.

Unfortunately many Permanent Residents do not know this rule and they either take a trip back to the U.S. without the child or they wait until after the child's 2nd birthday to bring the child to the U.S. Where this happens, the child is not eligible to enter the U.S. as a permanent resident under this rule, and the parent must file a petition for the child to enter the U.S. as a Permanent Resident. This can result in hardship for the family, as it can take many years for a visa to become available for a petition for the child of a Permanent Resident.

Can a spouse or child benefit from an approve immigrant petition where the primary beneficiary has died?

2009-11-16T18:41:00.002-06:00

Question: My uncle, a U.S. citizen, filed an I-130 immigrant visa petition on behalf of my father. The petition was approved, but then my father passed away. The priority date for the petition has been reached on the Visa Bulletin. Can my mother now get an immigrant visa based on the petition?

Answer: Unfortunately your mother cannot benefit from the petition filed by your uncle. When the primary beneficiary dies, the I-130 petition automatically becomes revoked. Any derivative beneficiaries to that petition are not eligible to receive visas based upon the revoked petition.

Unlike situations where the petitioner dies, there is no process to request a reinstatement of the petition for humanitarian reasons where the beneficiary dies.

The only remaining benefit of the petition is that is can still grandfather the derivative beneficiary under the INA 245(i) "amnesty" where the petition was filed by April 30, 2001.

Immigration Site Visits to H-1B Employers

2009-10-26T18:37:00.002-05:00

Today's post is by guest poster attorney Lynn Susser:

The USCIS has started conducting random Site visits to determine if H1B employers and employees are complying with the terms of the H1B and the LCA. In other words, they are checking to make sure the company is legitimately doing business as it says in the petition and to see if the person is doing the job that was described in the petition, working the same hours, and earning the salary that was certified on the LCA.

The officer will identify him or herself as a USCIS Site Inspector and will present an official government issued identification. If they do not have such identification, the employer can request that they return when they have it and should notify their attorney immediately.

The Inspector will ask to speak to the HR person or the person that signed the I-129. If that person is unavailable or no longer with the company, the employer should explain this to the Inspector. If they have someone else available that they feel confident can answer the questions, they should offer to have that person speak to the Inspector. If not, they should ask them to return on a day that the HR person is available.

The Inspector will also ask to speak to the foreign national that is the beneficiary of the relevant petition assuming they are working at the same location. If they are at a different location it is likely the Inspector will visit that site as well.

The Inspector will ask both parties questions about the position held by the H1B worker including the title of the job and the duties, the salary being paid, the hours being worked, and the actual location of the work.

Below is the list of questions the Inspector has to answer on his evaluation form:
1. Does the facility visually appear to be that of the petitioning organization?
2. Was an organizational representative authority present?
3. Did results of site visit suggest the presence of a legitimate organization?
4. Did the organization have knowledge of the beneficiary and the petition filed on behalf of the beneficiary?
5. Was the beneficiary working for the organization?
6. Was the Inspector able to identify and speak to the beneficiary?
7. Was the beneficiary knowledgeable, cooperative, and forthcoming with questions posed?
8. Was the beneficiary being paid the salary as indicated?
9. Was the beneficiary performing the duties as indicated?
10. Does the Inspector recommend further inquiry?

There is no way of knowing if a particular company will be chosen for a site inspection. Any H-1B petitioning employers or H-1B beneficiary employees with questions should consult with an immigration law attorney.

If someone is out of status can they get a green card through their Permanent Residence spouse?

2009-10-05T10:54:00.001-05:00

Question: A foreign national came to the U.S. on a visitor visa and overstayed his visa. He is now married to a woman who recently became a Permanent Resident. Can he now get Permanent Residence based upon his marriage?

Immigration Answer Man: No. A foreign national who is in the U.S. out of status is not eligible to adjust his status to become a Permanent Resident (green card holder) based upon his marriage to a Permanent Resident. A Permanent Resident can file an immigrant visa petition for her spouse under the second preference visa category (F2A). The DOS Visa Bulletin is currently showing a wait for a visa to become available under that category of about four years for foreign nationals from most countries and longer for foreign nationals from Mexico.

Even once the visa petition is approved and a visa becomes available for such a foreign national, since they are out of status, they would not be able to file for Adjustment of Status in the U.S. (unless they fall within one of a few exceptions). They would only be eligible to apply for an immigrant visa at the U.S. consular post in their home country. However, if they have been unlawfully present in the U.S. for more than 180 days, they will trigger a bar of inadmissibility upon exiting the U.S. and would require USCIS to approve a waiver of that inadmissibility based upon extreme hardship to their Permanent Resident spouse. Unfortunately the Unlawful Presence bar and waiver is too big a topic to discuss in this posting.

Alternatively, since they were legally admitted to the U.S. when they came on their visitor visa, once the Permanent Resident spouse naturalizes, they should be eligible to apply for Adjustment of Status in the U.S. as the Immediate Relative spouse of a U.S. citizen. (See 9/23/09 posting for more about this)

I am married to a US citizen. Can I apply for a green card even though I overstayed my visa?

2009-09-23T13:15:00.002-05:00

QUESTION: I came to the U.S. on an H-1b visa. I overstayed the time given to me on the I-94 Entry Document. I am now married to a U.S. citizen. Will my overstaying my I-94 keep me from being able to get a green card in the U.S.?

Ari Sauer's Answer: A foreign national who is married to a U.S. citizen can file for a green card in the U.S. as long as in their last entry into the U.S. they presented themselves for inspection at a port of entry and were legally inspected and admitted or paroled into the U.S.

This section of the law forgives the fact that the foreign national has not maintained their legal status in the U.S. and forgives any unauthorized employment by the foreign national.

This means that even though you fell out of status, you are eligible to apply for a green card because you were legally admitted as an H-1B nonimmigrant and you are filing for the green card based on the fact that you are married to a U.S. citizen.

However, this section of the law does not forgive other grounds of inadmissibility, such as criminal convictions, misrepresentation, or being subject to the unlawful presence bar. So the foreign national must otherwise be eligible for admission as a permanent resident.

USCIS has updated their website to make it more user-friendly

2009-09-22T15:05:00.002-05:00

The USCIS Director Alejandro Mayorkas held a meeting today with immigration bloggers to discuss the newly redesigned USCIS website.

The new website contains a more interactive format. The home page contains a list of links to information contained in the site that is listed by topic to make navigating through the site more user-friendly.

The home page also includes a “Where to Start” drop-down menu, that will direct users to the information they want by choosing their citizenship or immigration status and then choosing the application or process they want to find information about. There are currently a few bugs in this system, but the Director has said that they expect to have these bugs fixed by tomorrow.

USCIS has also launched a Spanish version of the website, which is located at www.uscis.gov/espanol. The Spanish site currently does not contain all the information contained in the main website, but USCIS is working to expand that site and expects that it will soon have all information from the main website available on the Spanish website.

USCIS has added a feature that now allows users to receive text messages with updates on their case status.

The new system makes it easier for users to find out the expected processing times for their application and the new case status display makes it easier for users to see where their application is in the process.

Finally, USCIS is working on adding a feature that will allow users to send inquiry requests on their applications directly to the Service Centers, as an alternative to calling the USCIS National Customer Service Center 1-800 number. This feature is expected to be available by May of 2010.

We applaud the Service for making the website more user-friendly and adding these additional features.

This Weeks Immigration News, Information and Articles

2009-09-11T14:44:00.002-05:00

Congratulations to Greg Siskind and Lynn Susser of the Siskind Susser, P.C. immigration law firm for being named to the list of Best Lawyers in America.

DOS publishes October 2009 DOS Visa Bulletin

Elaine Witty’s new immigration blog: Immigration and Religion

USCIS announces that as of August 28, 2009 there are still 19,900 H1B visas still available under the fiscal Year 2010 quota

USCIS announced that as of September 8, 2009 Federal Government contracts will require contractors to use the E-Verify program

USCIS is offering free webinars on the E-Verify program

USCIS is holding a meeting to take comments on the newly revised USCIS website

USCIS will be holding special Constitution Day and Citizenship Day naturalization oath ceremonies on September 17, 2009

DOL Wage and Hour Division is now inserting Workers Rights cards in passports of H-2B nonimmigrants

Immigration Impact: Immigrants with Mental Disabilities are Deprived of their Day in Court

How do I know if I could qualify for a green card as an Alien of Extraordinary Ability?

2009-09-08T17:49:00.000-05:00

Question: How do I know if I could qualify for a green card as an Alien of Extraordinary Ability?

Answer: There are several ways to become a Permanent Resident based upon your employment. One way is to show USCIS that you are an Alien of Extraordinary Ability. The benefit of being able to file under the Extraordinary Ability category is that it is one of the First Preference (EB-1) categories, so it does not require first obtaining a Labor Certification, and so far there is no shortage of visas available for the EB-1 category, so it is a quicker path to Permanent Residence.

However, not everyone is an Alien of Extraordinary Ability. As the name implies, it is only for those foreign nationals who can show that they are one of the shining stars, on the national or international level, within their field in the sciences, arts, education, business or athletics. In order to even be considered for this category, they must show that they have been the recipient of a major international award (for example the Nobel Prize) OR they must show they meet at least three of the following requirements:

1) That they have received lesser nationally or internationally recognized prizes or awards (awards from student competitions are not considered significant enough);

2) That they are members in associations in their field which require outstanding achievement in order to join;

3) That others have published articles or other materials about them in major trade publications or other major media;

4) That they have participated as a judge of the work of others within their field;

5) That they have made original contributions of major significance to their field;

6) That they have published scholarly articles on topics within their field;

7) That they have been in artistic exhibitions or showcases;

8) That they have performed in a leading or cultural role for organizations or establishments that have a distinguished reputation;

9) That they have a high salary or income in relation to others in the field;

10) That they have had commercial success in the performing arts.

It should be noted however, that meeting three out of these ten categories only allows USCIS to consider the applicant under this category. The applicant must still show that they have risen to the very top of their field of endeavor and that they have sustained national or international acclaim in their field.

If you think you may qualify for at least three of these categories, you should consult with an immigration law attorney who is experienced in filing I-140 Petitions under the Extraordinary Ability category to confirm whether you qualify.

If you do not meet these requirements, don’t worry. Most people don’t. There are a number of other paths to Permanent Residence through employment.

Can I marry my friend so she can get a green card?

2009-09-03T21:15:00.000-05:00

Question: I have a friend who is in the U.S., but not in legal status. I am a U.S. citizen. If I marry her, can she get a green card? How long would we have to stay married? Would we have to live together?

Answer: No. You should not marry your friend just to help her legalize her status.

When a U.S. citizen files an immigration petition for their foreign national spouse, they must prove that the marriage is real and not entered into to get the spouse a green card. The couple must show evidence that they have been sharing their lives and sharing their assets. If the spouse is in the U.S., the couple will also be interviewed by an immigration officer. Usually they interview the couple together, but if the officer feels that the marriage is a fraudulent marriage, they have the right to separate the couple and question them separately. In extremely rare case the government can send an ICE officer to your house for a surprise visit (In TV and movies they like to make it look like this happens all the time. It doesn't. But, when it does happen, it is nothing like on the TV show Ugly Betty).

If USCIS determines that the marriage is fraudulent, the foreign national is barred from receiving most immigration benefits in the future. This means that if she later marries someone who she actually wants spend her life with, she would not be able to get a green card based upon that marriage.

In many instances, USCIS will start removal proceedings against the foreign national, possibly resulting in their being deported.

Also, it is illegal to marry someone just so they can receive an immigration benefit. It is a crime with a possible penalty of imprisonment up to 5 years and a fine of up to $250,000. However, the government usually does not seek criminal prosecution except in the most egregious cases.

If you convince USCIS that the marriage was real, and they grant the green card, you are still not finished. Where a couple has been married for less than two years at the time the green card is granted, USCIS will grant Conditional Residence, which is only valid for two years. At the end of the two years (within the 90 days before the green card expires) the couple has to file an application to have the condition removed. This process involves showing USCIS again that the marriage is real. In some cases this also includes another interview. If the couple has divorced before then, the foreign national must still show that the marriage was not entered into to just to get the green card.

I entered the U.S. on a K-1 visa. Now I do not want to marry my fiancee. Can I get my green card another way?

2009-09-01T16:22:00.001-05:00

Question: I entered the U.S. using a K-1 visa. now I do not want to marry my fiancee. Is there some other way I can still get a green card?

Answer: Foreign nationals who enter the U.S. on a K-1 or K-3 "fiancee" visa cannot change status to another nonimmigrant status. They also are not eligible to apply to become Permanent Residents other than through marriage to their U.S. citizen fiancee or spouse. So your options are to marry your fiancee or leave the U.S. If you chose not to marry your fiancee and you remain in the U.S. beyond the 90 day period on your I-94, you will be out of status and unlawfully present.

USCIS transfered my file to the wrong office. What can I do to fix this error?

2009-08-31T18:26:00.000-05:00

Question: I had an I-485 application pending at the local USCIS office in Florida. I recently moved to Texas and filed an AR-11. I received a letter from the local USCIS office in Florida telling me that they were transferring my case to a local office in Missouri. I do not know why they are sending my file to Missouri. Is there anything I can do to stop them from transferring my case?

Answer: You cannot stop them from transferring the file. When you move, the local office has the option to transfer your file to the local office having jurisdiction over your new address. It is standard procedure for them to do so. In certain situations they can also transfer the case to a USCIS Service Center, which may be what they have done here by sending the file to the Missouri Service Center, rather than a local field office in Missouri.

Of course sometimes mistakes happen and USCIS sends the file to the wrong place. It seems to me that they should have sent the file to the local office in Texas having jurisdiction over your new address. It is possible that they sent the file to the wrong place or that the letter you received just had a typo and was supposed to say that they sent the file to the local office in Texas.

Either way, I would recommend that you make an Infopass appointment to go into your local field office in Texas. You can make the appointment on the USCIS website, www.uscis.gov. They should be able to clear up the situation and get the file to the correct field office. Make sure to bring all your documentation relating to your filings.

I am an 18 year old US Citizen My parents have been in the US more than 21 years. Can I petition for them to get green cards?

2009-08-28T17:12:00.000-05:00

Question: I am a US Citizen. I am 18 years old. My parents are out of status and have been in the US more than 21 years. Can I petition for them to legalize their status without them having to leave the US?

Answer: If you are 18, then you cannot petition for your parents. US citizens must be 21 or older to file immigrant visa petitions for their parents.

If your parents entered the US with a visa, border crossing card, as part of the Visa Waiver Program, or in some other valid manner, then when you are 21 you can petition for them and they can apply for a green card without leaving the US.

If your parents entered across the border without being inspected then it becomes more complicated. If they had a petition filed for them by the end of April of 2001, then they might fall within one of the previous "amnesties" under INA Section 245(i), and then they may be able to apply for a green card in the US based upon your petition.

If a petition has never previously been filed for them, they most likely would have to go back to their home country to apply for a visa at the US consular post. However, because they have been unlawfully present in the US for more than a year, if they leave the US, they will not be eligible to get a visa to return to the US for 10 years. A waiver of this 10 year bar would only be available if your parents have a US citizen or US Permanent Resident parent or spouse, and they can show that their parent or spouse will suffer extreme hardship if the waiver is not granted. The waiver is not available on the basis of having a US citizen or US permanent resident child.

However, since your parents have been in the US more than 10 years, and have a US citizen child, they may be eligible for the relief of Cancellation of Removal should the US government try to remove them from them US. However, the requirements of Cancellation of Removal is a complicated topic which will have to wait for a different posting.

After receiving my green card through my employer, how long do I have to stay with my employer before I can look for a new job?

2009-07-23T11:57:00.000-05:00

QUESTION: After receiving my green card through my employer, how long do I have to stay with my employer before I can look for a new job? Will my leaving affect my chances of getting citizenship?

ANSWER: There is no set amount of time that someone must stay with their employer after receiving their green card. You must have had the intention to work for your employer in the sponsored position. Your employer must have had the intention to employ you in the sponsored position. If you do not work for your employer at all, or only work for a short period of time, this could cause USCIS to question whether you actually intended to work for the employer. Therefore it is recommended that you work for the employer for at least a while. Some attorneys recommend that you work for the employer for at least 3 months, while some attorneys recommend that you work for the employer for at least 6 months. However, there is no set amount.

Normally this question will not come up until the employee applies for citizenship. USCIS can look to see if you worked for the employer in order to determine whether you committed fraud in your green card application. however, as long as you worked for the employer for some period and can give a reasonable explanation for leaving the position, the fact that you did not stay with the employer long should not be a bar to receiving citizenship.

You should also keep in mind that, in certain circumstances, the green card application is portable to a new employer. Therefore, when the application is portable, you can start working for the new employer as your new petitioner before the green card application is approved. For more information on this, please listen to the podcast that we recently posted on the subject at visalaw.podbean.com. However, before you move to a new employer under the portability regulations, I would recommend that you consult with an immigration law attorney to ensure that your application is truly portable.

USCIS mistakenly withdrew my I-140 petition. How do I correct the mistake?

2009-06-29T11:58:00.000-05:00

QUESTION- My I-140 was approved in 2006 and still working with sponsoring company.

Now my attorney got withdrawal/termination decision on my I-140, saying that my company requested the withdrawal of my I-140. My company or my attorney never send withdrawal letter for my I-140. However, my company sent withdrawal letters for some 12 other cases.

Could you please suggest how to correct USCIS mistake? Do we have to file Motion to Re-Open on my I-140?

ANSWER- Your attorney should file a Motion to Reopen, and include affidavits from them and from the signatory of the I-140 attesting to the fact that they did not send in a request to pull the I-140.

While it may be that USCIS might reopen on their own motion based on the letter from your attorney, you only have 33 days to file a MTR. If USCIS does not reopen on their own motion and you do not file a MTR within 33 days, then you have lost the chance to file a MTR, and have no authority to appeal the Services decision not to reopen on their own motion.

So you definitely want to file a MTR. It is worth the filing fee.

Of course , before you file a MTR and pay the filing fees, you want to make sure that you company didn't accidentally send in a letter requesting your I-140 be withdrawn along with the other 12. It would have been an easy mistake to have made. If that is the case, I would say it is unlikely that USCIS would reopen.

I have been charged with Solicitation of a Prostitute. How will this affect my immigration status?

2009-06-22T21:20:00.000-05:00

Today’s question is being answered by guest expert John Richbourg. John is an immigration law attorney with Siskind Susser, P.C. To view John’s full bio, visit http://www.visalaw.com/jrichbourg.html. You can schedule a consultation with John Richbourg or with one of Siskind Susser’s other attorneys at http://www.visalaw.com/intake.html or by calling 1-800-343-4890 or 901-682-6455.

QUESTION- I am a Canadian citizen and I have been charged with the crime of Solicitation of a Prostitute. This is the first time I have been charged with a crime. I have been offered a sentence of six months probation if I plead guilty. If I accept this agreement will it affect my immigration status?

ANSWER- The first question, in determining the consequences of this, or any other criminal conviction, is whether it is a Crime Involving Moral Turpitude (CIMT). CIMT’s can result in a foreign national being denied entry into the U.S.; ineligible for a change or extension of nonimmigrant status; ineligible to adjust status to become a Permanent Resident; and can make the foreign national subject to removal from the U.S. even if they are otherwise in a legal status. Prostitution is a CIMT. Therefore it is highly likely that a USCIS adjudicator or an Immigration Judge would determine that Solicitation of a Prostitute is a CIMT.

However, CIMT’s are forgiven when they fall under the Petty Offense Exception. A CIMT falls under the Petty Offense Exception where the maximum punishment that can be given for the crime is one year or less and the foreign national is not sentenced to imprisonment for more than 6 months. Keep in mind that in some cases the Judge will issue a sentence of imprisonment for more than 6 months and then suspend the jail time. When this happens, even though the foreign national is imprisoned for less than 6 months, the sentence is for more than six months of imprisonment, and therefore the conviction does not fall within the Petty Offense Exception. On the other hand, if the foreign national is sentenced to no jail time, but is sentenced to more than six months of probation, and the maximum penalty is a year or less, the conviction falls within the Petty Offense Exception.

The Petty Offense Exception only applies where the foreign national has only one conviction for a CIMT. If the foreign national has been convicted for more than one CIMT’s the Petty Offense Exception does save them.

Generally speaking, Solicitation of Prostitution is a misdemeanor which usually means the maximum punishment is less than a year. As a result, a punishment of a fine and a period of probation with no jail time would generally fall within the Petty Offense Exception for CIMT’s. However, laws governing criminal convictions vary between states, so this may not be true everywhere.

Another exception for CIMT is where the foreign national was under 18 at the time they committed the crime. Ins such a case, the CIMT would be forgiven after 5 years from the date of the crime or the date they were released confinement, whichever was later. However, just like the Petty Offense Exception, this exception only applies where the foreign national has only been convicted of one CIMT.

Where a foreign national is convicted of a CIMT, and these exceptions are not available, there are waivers of the consequences of a criminal conviction. However, that topic will have to be covered in a future posting.

A criminal conviction, even one that is not a CIMT, can result in a longer wait to be eligible for naturalization to U.S. citizenship.

The laws governing the consequences of criminal convictions for non-citizens are very complicated. Therefore it is important for any non-citizen who is charged with a crime to hire a criminal law attorney and have their criminal law attorney consult with an experienced immigration law attorney before accepting any plea bargain.

Can I become a Permanent Resident based on the fact that I have a minor U.S. citizen child?

2009-06-17T20:06:00.001-05:00

QUESTION- I am a Canadian citizen who is in the U.S. in TN nonimmigrant status. My wife and oldest daughter are here in TD nonimmigrant status as my dependants. My wife and I recently had another daughter, who was born here in the U.S. and is a U.S. citizen. Can my family and I become Permanent Residents based upon the fact that we have a U.S. citizen child?

ANSWER- No. A U.S. citizen can petition for their parents to become Permanent Residents, but they must be 21 years old to do so. A U.S. citizen must be 18 years old to petition for a sibling. So you cannot receive Permanent Residence by virtue of having a U.S. citizen child who is a minor. If you become ineligible to maintain your TN status, and are unable to change or adjust to another status, you and your family will have to return to Canada. While your U.S. citizen daughter has the right to live in the U.S., that does not automatically grant you that right as her parent.

In certain circumstances, the parent of a U.S. citizen will be eligible for relief from removal by the government, called Cancellation of Removal, based upon meeting several criteria, one of which can be met by having a U.S. citizen child. However, that will be the topic of another posting.

If you wish to live in the U.S., I suggest that you speak with your company and an immigration law attorney about switching to an H-1B visa, which is a dual intent visa (which means you can have it even if you have shown an intent to live in the U.S. permanently), and having your company start the process of sponsoring you for a green card.

My H-1B extension of status has been denied. Can I still leave the U.S. and reenter on a new H-1B visa?

2009-06-16T19:07:00.000-05:00

QUESTION- I have been working in the US in H-1B status since 2005. Shortly after I came to the U.S. my company transferred me to a different location, but never filed an amendment to my H-1B. In 2008 my company filed an extension of my H-1B petition, but due to the fact that I had been working in a different location, my Extension of Status was denied in February of 2009. My company has filed an appeal of the denial to the AAO, but I am not hopeful about the chances of the denial being overturned. My company has filed an I-140 petition for me, but I have not filed an I-485 application for adjustment of status as a visa is not yet available for my petition. What are my options?

ANSWER- Your biggest concern is that you have begun to accrue unlawful presence as of the date that your extension of status was denied. The fact that the denial has been appealed does not stop unlawful presence from accruing. If you remain in the U.S. more than 180 days from the date of your denial you will be limiting your options.

However, if you leave the U.S. before then, you can have your company file a new H-1B petition for you (you will not be subject to the cap) and you can apply for a new H-1B visa. Your past violation should not bar you from being able to receive a new H-1B visa, since there was no fraud, but only an oversight on the part of your company. For an additional $1,000 filing fee, your company can premium process the petition, so that it will only take a few weeks to have the new petition approved. Once you reenter on the new visa, your previous status violation and employment without authorization will be forgiven and should not harm you when it is time to file your application for adjustment of status.

I was recently denied a B-2 visitor visa. Can I now travel to the U.S. on the Visa Waiver Program?

2009-06-15T19:30:00.000-05:00

QUESTION: I am a citizen of the U.K. I was planning to visit the U.S. at the end of the month, to visit some friends. Since I wanted to stay longer than 90 days, I applied for a B-2 visitor’s visa at the U.S. Embassy. I was denied the visa. Can I now go to the U.S. on the Visa Waiver Program?

ANSWER: The Visa Waiver Program allows nationals from certain countries to travel to the U.S. as a visitor for, tourism or business, for up to 90 days without a visa. The VWP is available to citizens of the following 35 countries: Andorra; Australia; Austria; Belgium; Brunei; Czech Republic; Denmark; Estonia; Finland; France; Germany; Hungary; Iceland; Ireland; Italy; Japan; Latvia; Liechtenstein; Lithuania; Luxembourg; Malta; Monaco; the Netherlands; New Zealand; Norway; Portugal; San Marino; Singapore; Slovakia; Slovenia; South Korea; Spain; Sweden; Switzerland; and the U.K.

Foreign nationals who wish to stay in the U.S. longer than 90 days, or who are traveling to the U.S. for purposes other than as a tourist or for a B-1 visa appropriate business purpose, are required to apply for visas even if they are a national of one of these 35 countries. Also, VWP applicants must have an approved machine readable passport.

Foreign Nationals who enter the U.S. on the VWP are not eligible to change status to another nonimmigrant status or apply for Adjustment of Status to that of a Legal Permanent Resident, except in limited circumstances. Foreign nationals who have previously been denied entry into the U.S. or who have previously stayed in the U.S. more than 90 days after being admitted on the VWP are ineligible to apply for admission under the VWP and must travel on a visa.

A Foreign National who has recently been denied a visa, while not permanently barred from entering on the VWP, may still be denied entry to the U.S. on the VWP. Therefore you may not be able to enter the U.S. for your trip without a visa. The most common reason for a visitor visa being denied is under INA Section 214(b) for failure to show that you have strong ties to your home country, so that you are likely to return to your home country upon the expiration of your authorized stay, or for failure to show you have sufficient funds to support yourself in the U.S. so that you will not be required to work while you are in the U.S.

A denial of a visa under Section 214(b) does not make you ineligible to reapply. Therefore I would suggest that you reapply for a B-2 visitor visa and bring as much documentation as you can to show that you have strong ties to the U.K. and enough money in your bank account to support yourself while you are in the U.S. As these visa appointments are usually only a few minutes long, you should have the documentation organized in a manner to allow the consular officer to go through the documentation quickly.

I want to renew my daughter's U.S. passport. Do I need to have my ex-husband sign the application?

2009-06-14T10:51:00.000-05:00

QUESTION: I am a U.S. citizen who is now living in Israel. I was married to an Israeli citizens but now we are divorced. My daughter is a U.S. citizen and has a U.S. passport. When the time comes to renew my daughter's U.S. passport, will I need him to sign the application?

ANSWER: Applications for new U.S. passports or passport renewals for children 15 or under require both parents to apply in person with the child. This is true even if one or both of the parents are not U.S. citizens.

If one of the parents is unable to apply in person with the child (for example if they are living in a different country), the non-appearing parent must complete a Form DS-3053, Statement of Consent, http://travel.state.gov/passport/forms/ds3053/ds3053_846.html , and include a copy of their passport.

If the non-appearing parent cannot or will not sign the Statement of Consent, the appearing parent may complete the Form DS-3053 and include a statement as to the special circumstances why the non-appearing parent is not submitting a Statement of Consent. The DOS may then, in their discretion, grant the passport without the non-appearing parent’s consent, depending on the reason for the omission.

If the appearing parent has sole legal custody of the child, then a Statement of Consent is not required. In that situation the appearing parent can provide one of the following documents instead: 1) Death certificate of non-appearing parent; 2) court order granting the parent sole custody (unless the order restricts the child’s travel); 3) child’s birth certificate, Report of Birth Abroad, or Certification of Birth Abroad listing only the one parent; 4) Adoption decree listing the parent as the sole parent; 5) Court order specifically permitting the applying parent to travel with the child; or 6) a court order declaring the non-appearing parent to be incompetent.

For further instructions on what is required to apply for a U.S. passport for a minor, you can visit the DOS website at http://travel.state.gov/passport/get/minors/minors_834.html.

Do I have to wait for the I-130 Immigrant Petition to be approved before I file my I-485 Application for Adjustment of Status?

2009-06-12T08:26:00.000-05:00

QUESTION: My cousin is the unmarried son, over the age of 21, of a US citizen. His mother filed an I-130 immigrant visa petition for him in October of 2002, while she was a Permanent Resident (second preference category- F2B). His mother has since naturalized and become a US citizen (which converts him to the first preference category- F1). According to the Visa Bulletin, his priority date under the First Preference became current last month. The I-130 petition is still pending. Can he now file an I-485, application for adjustment of status, with just the I-130 petition filling receipt, or does he have to wait for the I-130 to be approved before he can file the I-485 application?

ANSWER: You do not have to wait for the I-130 petition to be approved to be able to file the I-485 application for adjustment of status. Where a visa is immediately available (such as for an Immediate Relative of a US citizen) you can file the I-485 application concurrently with the I-130 immigrant petition. Where an I-130 petition has been pending long enough that a visa is now available under the Visa Bulletin (see my 6/9/09 posting on how to read the Bulletin) you can file the I-485 application with a copy of the Receipt Notice for the pending I-130 petition.

Assuming your cousin is otherwise eligible to file for adjustment of status, he can file the I-485 application now with a copy of the I-130 Receipt Notice and a copy of his mother’s Certificate of Naturalization.

If your cousin is not eligible to file for adjustment of status (for example if he has failed to maintain his status and is now out of status), he may be eligible to apply for an immigrant visa at the US consular post in his home country, once the I-130 petition is approved. To have USCIS adjudicate the I-130, your cousin would send a copy of his mother’s certificate of naturalization along with a copy of the I-130 Receipt Notice, to the USCIS Service Center where the petition is pending.

Since it sounds like your cousin may no longer be in status, and the I-130 petition does not seem to grant him the ability to file under the 245(i) “amnesty” as it was filed after April of 2001, your cousin should consult with an attorney before filing an I-485 application or leaving the country to apply for a visa at the U.S. consular post.

Porting an Application for Adjustment of Status (I-485) to a new employer under AC21

2009-06-11T00:15:00.001-05:00

QUESTION: My company filed an I-140 immigrant petition for me which was approved in 2008. My I-485 application for adjustment of status was filed in 2007. In 2007 my company was purchased by another company, so a new I-140 petition was filed to reflect the new ownership. I am still in the same position as before the company was purchased. The new I-140 petition has not been approved yet.

I now have an offer of employment with a different company and I want to know if I can port my I-140/I-485 application over to the new employer now, or do I have to wait for the new I-140 to be approved?

Also, when I move to the new employer should I send USCIS a letter telling them that I am porting my I-485 application? I am afraid that if I don’t they will send a Request for Evidence (RFE) for my I-485 application to my old employer?

ANSWER: The American Competitiveness in the Twenty-First Century Act (AC21) created the ability to “port” your I-485 application for adjustment of status (green card application) to a new employer where: 1) the I-485 has been pending for more than 180 days; 2) the I-140 employment-based immigrant petition has been approved or was approvable as of the day that your I-485 had been pending for 180 days; and 3) you will be working in the same or similar occupational classification.

You should be eligible to port now without waiting for the new petition to be approved. You have an approved I-140 petition. Your I-485 application has been pending for more than 180 days. As long as your position with your new employer is the same or similar to your position with your old employer, then you meet all the requirements for porting your I-140 petition and I-485 application to your new employer. I would suggest that you meet with a qualified immigration law attorney before you switch employers to get their opinion of whether the new position is the same or similar to the old position.

As to your second question, there is no requirement to notify USCIS that you are porting. If USCIS sends you an RFE on the I-485 then you would notify them that you are now with a new employer and show that the new position is the same or similar to the old position. That being said, in a situation where the I-140 petition has already been approved, I see no harm in sending USCIS notice that you have ported to a new employer. I would not suggest sending notice to USCIS where the I-140 petition has not been approved, as it may result in an RFE for the I-140 petition being sent to your old employer.

You should know however, that sending USCIS notice that you have changed employers will not result in them sending future notices to your new employer. The I-485 application is filed by you, the beneficiary. Any correspondence from USCIS regarding the I-485 application should be sent to you at the address you provided on the form. A copy of all correspondence should also go to your attorney, if you had one file your application for you. An RFE for the I-485 application should not go to your employer unless you gave your employer’s address as your mailing address on the I-485 form. If you change your address, you can inform USCIS of your new address by calling the National Customer Service Center at 1-800-375-5283 (the number is listed on your receipt notice) and filing a Form AR-11 Change of Address, which is an on-line form located on the USCIS website. You must do both to ensure that USCIS actually changes your address in their system.

I came to the US 15 years ago on a visitor’s visa. Can my company sponsor me for a green card?

2009-06-10T08:01:00.000-05:00

Your question raises two issues. The first is what is the process for your company to file an immigrant petition on your behalf. I will have to deal with that in a separate posting. But the more important issue for you is if your company sponsors you for an immigrant petition, would that make you eligible to apply for Adjustment of Status (a green card application in the U.S.)?

As a general rule, in order to be eligible to apply for Adjustment of Status, an applicant must show that they have maintained valid immigration status at least until the time they file the application for adjustment of status. Therefore someone who enters on a visa, but overstays past the time listed on their I-94, is not eligible to apply for adjustment of status unless they fall within one of the few exceptions to this rule. The more common exceptions to this rule are adjustment for an Immediate Relative, adjustment under the 245(i) amnesty, and adjustment under 245(k). There are other exceptions to this rule, however these three are the most common.

An Immediate Relative (IR) is the spouse of a U.S. citizen or the unmarried child of a U.S. citizen who is under the age of 21. Where the foreign national, in their most recent entry, was inspected and admitted on a visa, was admitted on the Visa Waiver Program, or was paroled into the U.S., and they are filing their adjustment as an IR, based upon an immigrant petition filed by their U.S. citizen spouse or parent, they may file an application for adjustment of status despite the fact that they are now out of status.

245(i) is an “amnesty” that allows a foreign national to file for adjustment of status, despite the fact that they are now out of status, where they can show that an immigrant petition or labor certification was filed on their behalf before January 14, 1998, or that an immigration petition or labor certification was filed on their behalf before April 30, 2001 and they were in the U.S. on December 21, 2000. When filing under the 245(i) “amnesty” the foreign national must pay an additional $1,000 penalty filing fee.

Under 245(k), a foreign national who is out of status, but is filing an application for adjustment of status based upon an immigrant petition filed by their employer, may still be eligible for adjustment. To be eligible under 245(k) the foreign national must not have been out of status, worked without authorization, or done anything else to violate their status for a total of more than 180 days since their last admission into the U.S.

If you are not eligible to apply for adjustment of status in the U.S., you may still be eligible to apply for an immigrant visa at the U.S. Embassy or Consulate in your home country. However, I will have to cover that subject in another posting.

This is a brief overview of these complex rules. As such, I recommend that you consult with a qualified immigration attorney before filing an application for adjustment of status under one of these rules.

How do I read the Department of State Visa Bulletin? Why is there a backlog in my preference category?

2009-06-09T09:14:00.000-05:00

The Visa Bulletin, http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html, which is issued each month by the Department of State, shows when an immigrant visa is available for your immigrant visa petition. Congress has determined that there is to be a limit on the number of immigrant visas issued each year. Often there are more beneficiaries of immigrant visa petitions each year than there are available visas, which results in a backlog. Each preference category is allotted a specific percentage or number of visas from the total number of visas to be issued that year, which is why some preference categories are backlogged further than others. Furthermore, no country is allowed to receive more than 7% of the total number of visas issued for that year, which creates a further backlog for those countries that hit that 7% cap, which currently are China, India, Mexico and the Philippines.

The DOS calculates the Visa Bulletin based upon the number of approved immigrant visa petitions issued by USCIS. At times the USCIS will have an increase in the number of immigrant visa petitions it approves, or the DOS will find that it has miscalculated the number of approved petitions for a particular category, resulting in the DOS issuing a retrogression in the following month’s Visa Bulletin. Sometimes all visas for the year in a particular category will have been used before the end of the fiscal year, which will result in a visa becoming unavailable until October when the new fiscal year starts and new visas become available.

The Visa Bulletin consists of three charts: family-based immigrant visas; employment-based immigrant visas; and diversity visas. I will explain the family and employment-based charts, and save the discussion about diversity visas for another time. The family-based chart is split into 5 rows representing the four preference categories (The second preference category is split into two subcategories). Immediate Relatives (spouses and unmarried children under 21 of US citizens) are not listed on the chart because there is no limit to the number of visas to be issued to IRs. Once you have found your preference category, find the corresponding column for your country of nationality (usually your country of birth) or your spouse’s country of birth if they are immigrating with you. The date within the box shows the priority date for which a visa is available. If your priority date is earlier than the date listed then a visa is now available for your petition as of the 1st of the month listed at the top of the Visa Bulletin.

The employment-based chart is read the same way. It has nine rows each for a different preference category. The employment-based chart will sometimes have a letter listed instead of a date. The letter “C” shows that this category is Current, meaning there is no backlog and a visa is available. The letter “U” shows that this category is Unavailable, meaning all visas for this category have been used until October.

Derivatives beneficiary spouses and children are included in the preference category of the primary beneficiary.

How do I find out the processing times for my application? What do I do if my case has been pending for longer than the time listed on the Receipt?

2009-06-08T16:31:00.000-05:00

Your application or petition will have different processing times based upon what form you have filed, what preference category your petition is filed under, and which USCIS office is processing your application. While USCIS sometimes lists a processing time on the Receipt Notice, these processing times are usually incorrect. Current processing times can be found on the USCIS website, at https://egov.uscis.gov/cris/jsps/ptimes.jsp. Simply choose the Service Center or local office where your case is pending. The Service Center is listed at the bottom of your Receipt Notice. Then you scroll down until you reach the listing for your petition or application and you will see either the expected processing time, or the filing date of the applications that USCIS is currently working on.

If the processing time listed on the USCIS website is more than 30 days beyond the receipt date that is listed on your Receipt Notice, you can call the USCIS National Customer Service Center at 1800-375-5283. They should take down your information and issue a referral to the Service Center where your case is pending. Make sure to write down the date you called, the officer’s ID number, the referral number, and the date on which you can expect a response from USCIS. If you have an attorney, make sure to let your attorney know if you are going to call the NCSC and to give your attorney this information.

If your petition or application is pending with your local USCIS office, instead of calling the NSCS, you can schedule an Infopass appointment to go into the USCIS office and speak with an Information Officer. You can schedule an Infopass appointment on the USCIS website at http://infopass.uscis.gov/. You will not be allowed to speak with a USCIS Information Officer without an Infopass appointment. Please make sure to take note of the date you went to the Infopass appointment, the name of the Information Officer you spoke with, and what that officer told you.

If you have followed these steps and have not received a satisfactory response from USCIS, you should consider hiring an immigration attorney who is a member of the American Immigration Lawyer’s Association. Your attorney will have additional resources available to them to allow them to make additional inquiries into your case.