Children over 21 Years may be eligible to obtain immigrant Visa under the new USCIS Revised Guidance on Child Status Protection Act (CSPA)
Lal Varghese, Attorney at Law, Dallas
The Child Status Protection Act (CSPA) amended the Immigration Nationality Act by changing how an alien seeking admission to United States as a permanent resident is determined to be a child for purposes of immigrant classification. The Act permits an applicant for certain benefits to retain classification as a “child,” even if he or she has reached the age of 21.
Since its enactment on Aug. 6, 2002, USCIS provided several field guidance memoranda regarding the adjudication of immigration benefits in accordance with the CSPA.
U.S. Citizenship and Immigration Services issued a new guidance recently that will modify its earlier interpretation of the Child Status Protection Act (CSPA) which permits applicants for certain immigration benefits to retain classification as a child even if he or she has reached the age of 21.
The new guidance changes how USCIS interprets the applicability of the CSPA to aliens who had aged out prior to the enactment of the CSPA on August 6, 2002.
Under prior policy guidance, USCIS considered an alien beneficiary of a visa petition that was approved before August 6, 2002 to be covered by the CSPA only if the beneficiary had filed an application for permanent residence (either adjustment of status or an immigrant visa) on or before August 6, 2002, and no final determination had been made on that application prior to August 6, 2002.
This new policy extends CSPA coverage to aliens who had an approved visa petition prior to the enactment of CSPA but who did not have a pending application for permanent residence on the date of enactment of the CSPA.
Aliens who were ineligible under the prior policy and who subsequent to the enactment of the CSPA never filed an application for permanent residence may file an application for permanent residence to take advantage of this new interpretation. Aliens who filed an application for permanent residence after the enactment of the CSPA and who were denied solely because they had aged out may file motions to reopen or reconsider without a filing fee.
CSPA changes who can be considered to be a "child" for the purpose of the issuance of visas by the Department of State and for purposes of adjustment of status of aliens by USCIS.
The Act provides that if you are a U.S. citizen and you file a Petition for Alien Relative (Form I-130) on behalf of your child before he or she turns 21, your child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before your child turns 21. Children of lawful permanent residents also benefit if a Form I-130 is filed on behalf of their children.
The new guidance allows aliens who had an approved immigrant visa petition prior to the enactment of the CSPA, but had not yet applied for permanent residence (either an application for adjustment of status or an immigrant visa) on the date of enactment to benefit from the CSPA. Under prior guidance, the CSPA did not apply to such applicants. The new guidance includes many aliens who, subsequent to the enactment of the CSPA, never filed an application for permanent residence and aliens who filed an application for permanent residence but such application was denied solely based on the applicant’s age.
The new guidance does not include aliens who, prior to Aug. 6, 2002 (date CSPA was enacted), had a final decision on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child. If an alien filed an application for permanent residence after the enactment of the CSPA, and the application was denied, that denial must be ‘solely based’ on a finding that the applicant was not a child because the CSPA did not apply. An I-485 can be denied for various reasons; if your I-485 denial was based for a reason other than for CSPA, then this revised CSPA guidance does not apply to you. Finally, if you had an approved immigrant visa petition before August 6, 2002, and did not file an I-485 after the enactment of the CSPA, you could still benefit if (1) you are filing as an immediate relative or (2) your visa became available on or after Aug. 7, 2001, you did not apply for permanent residence within one year of petition approval and your visa becoming available.
The written denial decision received from USCIS will state the basis for the denial and the applicant should not have a final decision prior to Aug. 6, 2002 on an application for permanent residence based on an immigrant visa petition upon which the applicant claimed to be a child. There is difference between application of CSPA under Immigrant Petition as a child filed by a U.S. citizen and one filed by a Lawful Permanent Resident. If the child is under the age of 21 on the date of the immigrant petition filed by the U.S citizen, he/she will not ‘age out’. He or she will be eligible for permanent residence as an immediate relative, provided that no final decision was reached prior to Aug. 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child. In the later case, if the immigrant petition was approved and the priority date becomes current before the applicant’s ‘CSPA age’ reaches 21, the child will not ‘age out’, provided that no final decision was reached prior to Aug. 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child. In order for CSPA coverage to continue, the child must apply for permanent residence within a one-year of the date the priority date became current.
For preference category and derivative petitions, your ‘CSPA age’ is determined on the date that your visa, or in the case of derivative beneficiaries, the principal alien’s visa, becomes available. Your CSPA age is the result of subtracting the number of days that your immigrant visa petition was pending from your actual age on the date that your visa becomes available. If your ‘CSPA age’ is under 21 after that calculation, you will remain a child for purposes of the permanent residence application. Yes, so long as the child also meets CSPA eligibility requirements previously discussed and applies for permanent residence within one year of the priority date being current. Under the new policy, USCIS will accept, without a filing fee, a motion to reopen or reconsider a denied I-485 application if the following criteria are met: A visa petition was approved prior to Aug. 6, 2002 and the I-485 was filed after Aug. 6, 2002; The applicant would have been considered under the age of 21 under applicable CSPA rules; The applicant applied for permanent residence within one year of visa availability; and The applicant received a denial solely because he or she aged out.
There is no deadline to file any motion to re-open and the applicants should apply at their local USCIS field office. If an applicant did not have an application for permanent residence pending on Aug. 6, 2002 and did not subsequently apply for permanent residence is still eligible for CSPA coverage provided the applicant meets the following criteria: The applicant is applying for permanent residence as an immediate relative; or The applicant’s visa became available on or after Aug. 7, 2001; and The applicant did not apply for permanent residence within one year of the petition approval and visa availability, but would have qualified for CSPA coverage.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including the web sites of Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You are also requested to visit our law firm website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa@yahoogroups.com for more information about other related immigration matters. You can contact Attorney Lal Varghese at (972) 788-0777 or at (972) 788-1555, Fax (972) 556-1109 or at E-Mail: attylal@aol.com for any questions regarding this article free of any charges. We will also do an initial consultation on any immigration related legal matter on the phone free of any charges maximum to a length of five minutes as a special service to the community.
Saturday, May 16, 2009
Facts and Myths About Filing Petitions/Applications at USCIS Overseas Office in Delhi, India
Lal Varghese, Attorney at Law, Dallas
This article is intended to shed light on the myths and facts about USCIS overseas offices and their authority to process petitions/applications. These services are available to both U. S citizens and lawful permanent residents within the jurisdiction of the New Delhi USCIS office. The Director is Dimple Dhabalia (Acting), and the New Delhi Field Office has jurisdiction over U.S. immigration matters in the following countries: Bangladesh, Bhutan, India, Maldives, Nepal, Sri Lanka, Pakistan, and Afghanistan. Street Address of this office is American Embassy, Shantipath, Chanakyapuri, New Delhi - 110 021, India. The Mailing Address from the US is: Field Office Director, U.S. Citizenship and Immigration Services, Department of Homeland Security, American Embassy, Shantipath, Chanakyapuri, New Delhi, India - 110 021. If you would like send applications/petitions or documents by courier service the street address should be used. Field Office Director, U.S. Citizenship and Immigration Services, Department of Homeland Security, American Embassy, Shantipath, Chanakyapuri, New Delhi, India 110 021.
The USCIS office is located in the diplomatic enclave of New Delhi, an area where many other embassies and high commissions are located. Please use the public entrance access from the West Building. The office is open to the public Monday through Friday from 9:00 AM to 12:00 PM. It is closed on Indian and American holidays. Phone number for general inquiries in Hindi, Punjabi, or English are as follows: If calling from U. S. S., please dial 011-91-11 then dial for I-730 applications please call: 2419-8506, for I-130 applications please call: 2419-8154, for I-600 applications please call: 2419-8639. This office does not process immigrant visas and you should contact the Immigrant Visa processing unit of the U. S. Consulate directly at 2419-8062 or 2419-8374. For specific case inquiries, a fax is preferable. The fax numbers are (Country Code 91) + (City Code 11) + 2419-8347 or 2419-8730. If calling from the United States, please dial 011 first. The Email address is CIS.NDI@dhs.gov. No appointment is necessary to visit the USCIS New Delhi field office. Based on the requirements of an applicant, an appointment may be made with a U.S. Immigration Officer, usually on the same day. Walk-ins are accepted on a first-come, first-served basis. Walk-ins and appointments are accommodated from 9:00 AM to 12:00 PM. The fees for all applications and petitions submitted to this office must be paid with either Indian Rupees, U.S. dollars, or cashier's checks made payable to the American Embassy New Delhi. Personal checks are not accepted.
The abandonment of lawful permanent resident status is irrevocable. An individual who relinquishes lawful permanent resident status must qualify again for such status. Therefore, one should give careful thought to abandoning lawful permanent resident status. If you wish to abandon your permanent residence and relinquish your Permanent Resident Card (Green Card), please contact us by phone or in writing for further instructions how to file I-407. The New Delhi Field Office accepts Form I-600 from the following petitioners: Applicants whose Form I-600A has been approved stateside, then forwarded to and received by this office will need: Form I-600 signed by both Petitioners and submitted in person by the U.S. Petitioner, Affidavit of Birth and Abandonment issued by an Orphanage and/or certificate of Abandonment issued by the Juvenile Welfare Board in India and/or Relinquishment Deed signed by the parent(s), Court Order granting legal custody or approving adoption, Copy of Adoption Deed and fee receipt indicating that the original has been submitted to the Sub-registrar's Office in India for registration (applicable only for Hindus if they adopt in India), Proof that all pre-adoption requirements have been met (if incomplete on Form I-600A). Information on international adoptions may be found at the Department of State and on the USCIS online website at How Do I Apply to Bring a Foreign-Born Orphan to the United States?
U.S. citizens, who reside locally, are eligible to file Forms I-130, ''Immediate Relative Immigration Petitions'', for spouses, parents, and unmarried children under 21 by coming to the office during normal business hours. The normal processing time is one week. The petitioner must comply with all instructions on the Form I-130. The petitioner must submit originals for all documents with copies (originals will be returned). The U.S. Citizenship and Immigration Services at the U.S. Embassy in New Delhi accepts I-130 petitions from U.S. citizens who reside in India. U.S. citizens whose principal residence is not in India, and/or are abroad temporarily as a visitor or on business, must file the petition in the United States. If you are not eligible to file in New Delhi, you should file the petition with the U.S. Citizenship & Immigration Service Center having jurisdiction over your place of residence or last residence in the United States. Lawful Permanent Residents must file the petition in the United States. Proof of such residency will include a U.S. passport with an appropriate long-term, valid Indian visa and a Registration Report and Residential Permit issued by the Foreigner’s Regional Registration Office (FRRO) of the Government of India. Additional evidence should include, but is not limited to, on-going employment in India, taxes paid in India, rent/property receipts, and utility receipts in India. United States Citizens may file their petitions between 08:30 a.m. to 01:00 p.m. on all normal business days i.e. Monday through Thursday. United States Citizens MUST BE PRESENT to file their petitions. If a United States Citizen is filing for a spouse, it is recommended that the spouse also appear so that immigration officials may ask any questions necessary for the adjudication of the petition.
U.S. immigration offices overseas do not accept or process Naturalization applications from U.S. Lawful Permanent Residents (LPRs) that live overseas. See the USCIS Website on Naturalization for eligibility criteria and proper filing procedures. The New Delhi Field Office does not issue Humanitarian parole. Instructions on how to file an application for Humanitarian Parole are located on Form I-131. The address that you should send the completed Form I-131 is: Department of Homeland Security, U.S. Citizenship and Immigration Services, Attn: Chief, International Operations Division, (Humanitarian Parole), 20 Massachusetts Avenue, NW, Suite 3300, Washington, DC 20529-2100. To expedite the processing, the use of express mailing is recommended.
The New Delhi Field Office does not issue or extend Re-Entry Permits. Applicants who have requested that their Re-Entry Permits be sent overseas, for delivery at the New Delhi Field Office, will be sent a call-in letter that requests them to collect their permit, upon presentation of their passport and Alien Registration Card. Instructions on how to obtain or replace a Re-Entry Permit are found at Emergency Travel. The New Delhi office does not directly receive refugee resettlement applications. These applications should be filed with the United Nations High Commission for Refugees (UNHCR) in New Delhi. Any inquiries on previously rejected refugee applications must be addressed to USCIS in the Embassy. For general information and processing criteria please see the Department of State and elsewhere on the USCIS website.
Form I-601 must be filed with the Consular Office where an applicant is applying for an immigrant visa. Special Registration is a program of the US Immigration and Customs Enforcement (ICE) of the Department of Homeland Security. The New Delhi Field Office does not issue Transportation Letters for a Lawful Permanent Resident of the United States, who is not in possession of his/her Alien Registration Card (Form I-551/I-151). Please contact U.S. Immigration and Customs Enforcement (ICE) at the U.S. Embassy New Delhi if your Alien Registration Card has been lost, stolen or is expired.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You can visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa@yahoogroups.com for more information about other related immigration matters.
Lal Varghese, Attorney at Law, Dallas
This article is intended to shed light on the myths and facts about USCIS overseas offices and their authority to process petitions/applications. These services are available to both U. S citizens and lawful permanent residents within the jurisdiction of the New Delhi USCIS office. The Director is Dimple Dhabalia (Acting), and the New Delhi Field Office has jurisdiction over U.S. immigration matters in the following countries: Bangladesh, Bhutan, India, Maldives, Nepal, Sri Lanka, Pakistan, and Afghanistan. Street Address of this office is American Embassy, Shantipath, Chanakyapuri, New Delhi - 110 021, India. The Mailing Address from the US is: Field Office Director, U.S. Citizenship and Immigration Services, Department of Homeland Security, American Embassy, Shantipath, Chanakyapuri, New Delhi, India - 110 021. If you would like send applications/petitions or documents by courier service the street address should be used. Field Office Director, U.S. Citizenship and Immigration Services, Department of Homeland Security, American Embassy, Shantipath, Chanakyapuri, New Delhi, India 110 021.
The USCIS office is located in the diplomatic enclave of New Delhi, an area where many other embassies and high commissions are located. Please use the public entrance access from the West Building. The office is open to the public Monday through Friday from 9:00 AM to 12:00 PM. It is closed on Indian and American holidays. Phone number for general inquiries in Hindi, Punjabi, or English are as follows: If calling from U. S. S., please dial 011-91-11 then dial for I-730 applications please call: 2419-8506, for I-130 applications please call: 2419-8154, for I-600 applications please call: 2419-8639. This office does not process immigrant visas and you should contact the Immigrant Visa processing unit of the U. S. Consulate directly at 2419-8062 or 2419-8374. For specific case inquiries, a fax is preferable. The fax numbers are (Country Code 91) + (City Code 11) + 2419-8347 or 2419-8730. If calling from the United States, please dial 011 first. The Email address is CIS.NDI@dhs.gov. No appointment is necessary to visit the USCIS New Delhi field office. Based on the requirements of an applicant, an appointment may be made with a U.S. Immigration Officer, usually on the same day. Walk-ins are accepted on a first-come, first-served basis. Walk-ins and appointments are accommodated from 9:00 AM to 12:00 PM. The fees for all applications and petitions submitted to this office must be paid with either Indian Rupees, U.S. dollars, or cashier's checks made payable to the American Embassy New Delhi. Personal checks are not accepted.
The abandonment of lawful permanent resident status is irrevocable. An individual who relinquishes lawful permanent resident status must qualify again for such status. Therefore, one should give careful thought to abandoning lawful permanent resident status. If you wish to abandon your permanent residence and relinquish your Permanent Resident Card (Green Card), please contact us by phone or in writing for further instructions how to file I-407. The New Delhi Field Office accepts Form I-600 from the following petitioners: Applicants whose Form I-600A has been approved stateside, then forwarded to and received by this office will need: Form I-600 signed by both Petitioners and submitted in person by the U.S. Petitioner, Affidavit of Birth and Abandonment issued by an Orphanage and/or certificate of Abandonment issued by the Juvenile Welfare Board in India and/or Relinquishment Deed signed by the parent(s), Court Order granting legal custody or approving adoption, Copy of Adoption Deed and fee receipt indicating that the original has been submitted to the Sub-registrar's Office in India for registration (applicable only for Hindus if they adopt in India), Proof that all pre-adoption requirements have been met (if incomplete on Form I-600A). Information on international adoptions may be found at the Department of State and on the USCIS online website at How Do I Apply to Bring a Foreign-Born Orphan to the United States?
U.S. citizens, who reside locally, are eligible to file Forms I-130, ''Immediate Relative Immigration Petitions'', for spouses, parents, and unmarried children under 21 by coming to the office during normal business hours. The normal processing time is one week. The petitioner must comply with all instructions on the Form I-130. The petitioner must submit originals for all documents with copies (originals will be returned). The U.S. Citizenship and Immigration Services at the U.S. Embassy in New Delhi accepts I-130 petitions from U.S. citizens who reside in India. U.S. citizens whose principal residence is not in India, and/or are abroad temporarily as a visitor or on business, must file the petition in the United States. If you are not eligible to file in New Delhi, you should file the petition with the U.S. Citizenship & Immigration Service Center having jurisdiction over your place of residence or last residence in the United States. Lawful Permanent Residents must file the petition in the United States. Proof of such residency will include a U.S. passport with an appropriate long-term, valid Indian visa and a Registration Report and Residential Permit issued by the Foreigner’s Regional Registration Office (FRRO) of the Government of India. Additional evidence should include, but is not limited to, on-going employment in India, taxes paid in India, rent/property receipts, and utility receipts in India. United States Citizens may file their petitions between 08:30 a.m. to 01:00 p.m. on all normal business days i.e. Monday through Thursday. United States Citizens MUST BE PRESENT to file their petitions. If a United States Citizen is filing for a spouse, it is recommended that the spouse also appear so that immigration officials may ask any questions necessary for the adjudication of the petition.
U.S. immigration offices overseas do not accept or process Naturalization applications from U.S. Lawful Permanent Residents (LPRs) that live overseas. See the USCIS Website on Naturalization for eligibility criteria and proper filing procedures. The New Delhi Field Office does not issue Humanitarian parole. Instructions on how to file an application for Humanitarian Parole are located on Form I-131. The address that you should send the completed Form I-131 is: Department of Homeland Security, U.S. Citizenship and Immigration Services, Attn: Chief, International Operations Division, (Humanitarian Parole), 20 Massachusetts Avenue, NW, Suite 3300, Washington, DC 20529-2100. To expedite the processing, the use of express mailing is recommended.
The New Delhi Field Office does not issue or extend Re-Entry Permits. Applicants who have requested that their Re-Entry Permits be sent overseas, for delivery at the New Delhi Field Office, will be sent a call-in letter that requests them to collect their permit, upon presentation of their passport and Alien Registration Card. Instructions on how to obtain or replace a Re-Entry Permit are found at Emergency Travel. The New Delhi office does not directly receive refugee resettlement applications. These applications should be filed with the United Nations High Commission for Refugees (UNHCR) in New Delhi. Any inquiries on previously rejected refugee applications must be addressed to USCIS in the Embassy. For general information and processing criteria please see the Department of State and elsewhere on the USCIS website.
Form I-601 must be filed with the Consular Office where an applicant is applying for an immigrant visa. Special Registration is a program of the US Immigration and Customs Enforcement (ICE) of the Department of Homeland Security. The New Delhi Field Office does not issue Transportation Letters for a Lawful Permanent Resident of the United States, who is not in possession of his/her Alien Registration Card (Form I-551/I-151). Please contact U.S. Immigration and Customs Enforcement (ICE) at the U.S. Embassy New Delhi if your Alien Registration Card has been lost, stolen or is expired.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You can visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa@yahoogroups.com for more information about other related immigration matters.
Thursday, May 14, 2009
USCIS to Issue Two-Year Employment Authorization Documents (EADS)
Lal Varghese, Attorney at Law, Dallas
Certain aliens who are temporarily in the United States may file Application for Employment Authorization, to request an Employment Authorization Document (EAD), which authorizes them to work legally in the U.S. during the time the EAD is valid. The two-year EAD is available to pending adjustment applicants (i.e., those who have filed a Form I-485, Application to Register Permanent Residence or Adjust Status) who have filed for an EAD under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) and who are currently unable to adjust status because an immigrant visa number is not currently available. USCIS will continue to grant EADs that are valid for one-year for adjustment applicants who have an available immigrant visa number and are filing for employment authorization under 8 C.F.R. Section 274a.12(c)(9).
USCIS expects to implement this initiative for cases pending on June 30, 2008. Applicants filing Form I-765 under 8 C.F.R., Section 274.a.12(c)(9) should begin to receive their two-year EAD a couple of weeks after the anticipated June 30, 2008 implementation date. For further information, please review the USCIS Update on the new two-year EAD posted online at: http:/www.uscis.gov.
Initial EAD filings will generally receive an EAD that is valid for one- year because they are usually submitted with the Form I-485 that can only be filed when there is an immigrant visa number immediately available to the individual. Applicants are only eligible for a two-year EAD if their immigrant visa availability date retrogresses (i.e., when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an immigrant visa number is available, USCIS will grant the one-year EAD.
USCIS will decide whether to renew an EAD for either a one or two-year validity period based on the most recent Department of State Visa Bulletin available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. If an applicant’s visa number has retrogressed and is unavailable, USCIS may issue a renewal EAD valid for two years. USCIS will continue to issue the EAD in one-year increments when the Department of State Visa Bulletin shows an employment-based preference category is current as a whole or the applicant’s priority date is current.
If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the Department of State Visa Bulletin and the applicant’s priority date. If USCIS determines that an applicant has filed multiple applications for EAD, the agency may deny the applications for the replacement or renewal EAD. USCIS views this change as a way to better serve its customer base, and in particular, persons who are waiting to become lawful permanent residents and are impacted by the lack of immigrant visa numbers.
On July 30, 2004, USCIS published an interim rule, “Employment Authorization Documents," at 69 Federal Reg. 45555. This interim rule authorized USCIS, in its discretion, to issue EADs with validity periods other than one year based on certain criteria deemed appropriate by the Department of Homeland Security.
If you have not received a decision within 90 days of the USCIS receipt date and you have properly filed your EAD application, you may inquire about an interim EAD at your local USCIS District Office or by calling the USCIS National Customer Service Center at (800) 375-5283 or (800) 767-1833 (TTY). You must have proof of identity and any notices that you have received from USCIS in connection with your application for employment authorization when contacting USCIS. The new two-year EAD is only available to individuals who have filed to become a lawful permanent resident (LPR) using a Form I-485, Application to Register Permanent Residence or Adjust Status, and filed for employment authorization under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) but are unable to become an LPR because an immigrant visa number is not currently available.USCIS will decide whether to renew an EAD for either a one or two year validity period based on the most recent Department of State Visa Bulletin. A link to these bulletins is available under the related links section of this page. For applicants who have an available immigrant visa number and who are filing for employment authorization under 8 C.F.R. Section 274.a.12(c)(9), USCIS will continue to grant EADs that are valid for one-year. USCIS may issue a two-year renewal EAD if the applicant’s immigrant visa availability date retrogresses (when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the applicant’s priority date and the Department of State Visa Bulletin.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including the web sites of Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You are also requested to visit our law firm website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa@yahoogroups.com for more information about other related immigration matters. You can contact Attorney Lal Varghese at (972) 788-0777 or at (972) 788-1555, Fax (972) 556-1109 or at E-Mail: attylal@aol.com for any questions regarding this article free of any charges. We will also do an initial consultation on any immigration related legal matter on the phone free of any charges maximum to a length of five minutes as a special service to the community.
Lal Varghese, Attorney at Law, Dallas
Certain aliens who are temporarily in the United States may file Application for Employment Authorization, to request an Employment Authorization Document (EAD), which authorizes them to work legally in the U.S. during the time the EAD is valid. The two-year EAD is available to pending adjustment applicants (i.e., those who have filed a Form I-485, Application to Register Permanent Residence or Adjust Status) who have filed for an EAD under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) and who are currently unable to adjust status because an immigrant visa number is not currently available. USCIS will continue to grant EADs that are valid for one-year for adjustment applicants who have an available immigrant visa number and are filing for employment authorization under 8 C.F.R. Section 274a.12(c)(9).
USCIS expects to implement this initiative for cases pending on June 30, 2008. Applicants filing Form I-765 under 8 C.F.R., Section 274.a.12(c)(9) should begin to receive their two-year EAD a couple of weeks after the anticipated June 30, 2008 implementation date. For further information, please review the USCIS Update on the new two-year EAD posted online at: http:/www.uscis.gov.
Initial EAD filings will generally receive an EAD that is valid for one- year because they are usually submitted with the Form I-485 that can only be filed when there is an immigrant visa number immediately available to the individual. Applicants are only eligible for a two-year EAD if their immigrant visa availability date retrogresses (i.e., when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an immigrant visa number is available, USCIS will grant the one-year EAD.
USCIS will decide whether to renew an EAD for either a one or two-year validity period based on the most recent Department of State Visa Bulletin available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. If an applicant’s visa number has retrogressed and is unavailable, USCIS may issue a renewal EAD valid for two years. USCIS will continue to issue the EAD in one-year increments when the Department of State Visa Bulletin shows an employment-based preference category is current as a whole or the applicant’s priority date is current.
If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the Department of State Visa Bulletin and the applicant’s priority date. If USCIS determines that an applicant has filed multiple applications for EAD, the agency may deny the applications for the replacement or renewal EAD. USCIS views this change as a way to better serve its customer base, and in particular, persons who are waiting to become lawful permanent residents and are impacted by the lack of immigrant visa numbers.
On July 30, 2004, USCIS published an interim rule, “Employment Authorization Documents," at 69 Federal Reg. 45555. This interim rule authorized USCIS, in its discretion, to issue EADs with validity periods other than one year based on certain criteria deemed appropriate by the Department of Homeland Security.
If you have not received a decision within 90 days of the USCIS receipt date and you have properly filed your EAD application, you may inquire about an interim EAD at your local USCIS District Office or by calling the USCIS National Customer Service Center at (800) 375-5283 or (800) 767-1833 (TTY). You must have proof of identity and any notices that you have received from USCIS in connection with your application for employment authorization when contacting USCIS. The new two-year EAD is only available to individuals who have filed to become a lawful permanent resident (LPR) using a Form I-485, Application to Register Permanent Residence or Adjust Status, and filed for employment authorization under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) but are unable to become an LPR because an immigrant visa number is not currently available.USCIS will decide whether to renew an EAD for either a one or two year validity period based on the most recent Department of State Visa Bulletin. A link to these bulletins is available under the related links section of this page. For applicants who have an available immigrant visa number and who are filing for employment authorization under 8 C.F.R. Section 274.a.12(c)(9), USCIS will continue to grant EADs that are valid for one-year. USCIS may issue a two-year renewal EAD if the applicant’s immigrant visa availability date retrogresses (when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the applicant’s priority date and the Department of State Visa Bulletin.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including the web sites of Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You are also requested to visit our law firm website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa@yahoogroups.com for more information about other related immigration matters. You can contact Attorney Lal Varghese at (972) 788-0777 or at (972) 788-1555, Fax (972) 556-1109 or at E-Mail: attylal@aol.com for any questions regarding this article free of any charges. We will also do an initial consultation on any immigration related legal matter on the phone free of any charges maximum to a length of five minutes as a special service to the community.
USCIS Biometric Changes for Re-entry Permits for Green Card Holders and Refugee Travel Documents
Lal Varghese, Attorney at Law, Dallas
U.S. Citizenship and Immigration Services (USCIS) has issued revised instructions for USCIS Form I-131, Application for Travel Document. The instructions include changes effective March 5, 2008 that require applicants for re-entry permits and refugee travel documents to provide biometrics (e.g., fingerprints and photographs) at a USCIS Application Support Center (ASC) for background and security checks and to meet requirements for secure travel and entry documents containing biometric identifiers.
Q. What are the new biometric changes for re-entry permits and refugee travel documents?
A. The new instructions for Form I-131 require that applicants for re-entry permits and refugee travel documents that are ages 14 through 79 provide biometrics before departing from the United States. Applicants also are strongly encouraged to apply, whenever possible, well in advance of their anticipated travel dates to allow time to attend their ASC appointments and to receive their travel documents. Shortly after filing a Form I-131 for a refugee travel document or a re-entry permit, USCIS will mail the applicant his or her receipt and an ASC scheduling notice. Certain overseas USICS offices may, in their discretion, accept and adjudicate Form I-131 filed for a refugee travel document (but not re-entry permits), where the applicant has failed to apply while in the U.S. However, applicants for refugee travel documents should not count on the overseas offices necessarily agreeing to accept and adjudicate an I-131 in all cases, particularly where it is evident that the individual could have applied while in the U.S. and attended his or her biometrics appointment.
Q. Is there a fee for the new biometrics requirement for applicants applying for re-entry permits and refugee travel documents?
A. The instructions discuss the requirement for applicants for re-entry permits and refugee travel documents who are in the United States to pay the $80 biometrics services fee, or to submit a biometrics fee waiver request with sufficient documentation to support their inability to pay the fee. As in the past, the application fee for Form I-131 cannot be waived.
Q. What are the procedures for requesting an expedited adjudication of Form I-131?
A. If applicants require expedited processing the instructions provide specific information for submitting pre-paid express mailers with the Form I-131 for USCIS to send the applicant his or her receipt and ASC appointment notice, as well as the completed re-entry permit or refugee travel document, if approved. A request for expedited processing should contain the applicant’s reasons for such processing so that USCIS may determine whether the applicant qualifies for expedited processing.
Q. Will Forms I-131 already in the pipeline that remain un-adjudicated as of 3/5/08 at the Nebraska Service Center be subject to the new biometrics requirement?
A. No, not unless USCIS determines, in a particular case, that there is a need for additional biometrics (other than the photographs that all applicants were required to submit with their I-131) for a specific reason related to the adjudication of that case, such as a question regarding the applicant’s true identity. As always, USCIS reserves its authority in such a case to request additional information, which may include biometrics. The general requirement for applicants for refugee travel permits and re-entry permits to appear for a biometrics appointment at an ASC is for applications filed on or after the effective date 03/05/08, not for the applications that are pending as of that date. Applications that were filed prior to 03/05/08 will need to contain valid photographs for document production and verification of identity. Applicants that filed prior to 03/05/08 will not be required to pay the $80 biometrics fee.
Q. How and when will applicants be notified that they must pay the additional biometrics fee?
A. The I-131 form instructions, revised on 02/26/2008, as well as the USCIS Update released on 03/05/2008 notify all applicants for refugee travel documents or re-entry permits that a $80 biometrics fee (or a properly supported fee waiver request) is necessary for processing if the person is in the age range (14 – 79) that is required to attend an ASC appointment for biometrics.
Q. Will Forms I-131 submitted/mailed before 3/5/08 but received at the NSC on 3/5/08 be subject to the new requirement?
A. No, if the applicant does not submit the biometrics fee and mailed his or her Form I-131 before 03/05/08, USCIS will process the application according the procedures in place before the Form I-131 biometrics requirement. However, as mentioned above, USCIS continues to reserve its authority to request biometrics as additional information, if needed, for the adjudication of a specific case even if the person submitted his or her application prior to 3/5/08.
Q. Do the revised Form I-131 instructions require advance parole applicants to complete biometrics? A. Applicants for advance parole are not required to submit biometrics at this time. An applicant for advance parole must continue to submit two identical color photographs of the applicant taken within 30 days of the filing of the Form I-131 application.
Q. Is e-filing available for aliens applying for a re-entry permit or a refugee travel document on the USCIS website?
A. Currently, only those who are seeking to e-file Form I-131 for advance parole would be able to use the e-filing option. The system is currently unable to accept the additional biometrics fees that are required for refugee travel documents and re-entry permits. Therefore, customers are encouraged to file via paper until the system is changed. Once the system is in place, e-filing of Form I-131 will be available for all categories.
Q. Are applicants for Form I-131 re-entry permits or refugee travel documents required to be physically present in the U.S. at the time of filing of the I-131 application?
A. While USCIS urges all applicants for refugee travel documents to anticipate their need for the document before leaving the United States and to allow sufficient time for processing and adjudication, certain USCIS overseas offices do have discretionary authority to adjudicate an application for a RTD. This option is not available for applications for re-entry permits. Applicants filing for re-entry permits must be physically present in the United States when they file the re-entry permit application. USCIS or a U.S. Department of State Embassy or Consulate can deliver re-entry permits, as well as refugee travel documents to the applicant at an overseas office if the applicant requests so at the time of filing Form I-131. To reiterate, filing of Form I-131 for a re-entry permit must be done while the person is physically present in the United States.
Q. May an I-131 applicant for a re-entry permit or refugee travel document complete biometrics outside of the United States?
A. Form I-131 instructions provide guidance for certain persons who are abroad at the time of filing to visit a U.S. Embassy or consulate for fingerprinting, although all applicants are urged to file before leaving the United States. Since certain overseas offices have the discretion to accept and adjudicate applications for refugee travel documents, although it is not mandatory that they do so, an applicant for a refugee travel document may complete biometrics outside of the United States, but is encouraged to wait to travel until his or her biometrics have been collected and the document delivered. As discussed earlier, certain overseas USCIS offices may, in their discretion, adjudicate Form I-131 filed for a refugee travel document (but not re-entry permits), where the applicant has failed to apply while in the U.S. However, applicants for refugee travel documents should not count on the overseas offices necessarily agreeing to adjudicate Form I-131 in all cases, particularly where it is evident that the individual could have applied while in the U.S. and attended his or her biometrics appointment. Applicants for reentry permits should attend their biometric appointment at the designated ASC. If the applicant departs the United States before the biometrics are collected, the application may be denied.
Q. Will Form I-131 re-entry permit or refugee travel document be denied if the applicant leaves the U.S. after the application has been filed and receipted but before biometrics are completed?
A. Form I-131 form instructions state, “Departure from the United States before a decision is made on an application for a Re-entry Permit usually does not affect the application. However, where biometric collection is required and the applicant departs the United States before the biometrics are collected, the application may be denied.” Travel is not advisable. If an applicant leaves and comes back, his or her application may be denied while abroad, and he or she may not be able to get back into the country. Even though an overseas USCIS office may, in its discretion, take the biometrics of an applicant for a refugee travel document, there is no guarantee that the office will necessarily exercise its discretion to do so. Therefore, USCIS again urges all I-131 applicants for whom biometrics will be required to file their applications well in advance of their scheduled departure dates. USCIS suggests applicants apply for a travel document at least 60 days prior to the date of travel.
Q. I am a Lawful Permanent Resident (LPR) who will be out of the US for more than 1 year? What documents will I need to return to the US?
A. To reenter the U.S. an LPR normally needs to present his or her green card (Permanent Resident Card, Form I-551). A reentry permit is needed for reentry from absences outside the U.S. that are greater than one year but less than two years in duration. Thus, if an LPR anticipates remaining outside the U.S. for longer than one year, he/she will need to apply for a reentry permit while he or she is in the U.S. (Re-entry permit may be approved IF filed by a person who is in the U.S. at the time of application)(emphasis added). An application is not complete until an individual has provided his or her fingerprints and photograph (i.e., biometrics). The newly revised I-131 instructions also provide procedures for requesting an expedited ASC appointment for biometrics collection and for requesting expedited delivery of a travel document, where needed. USCIS believes that the majority of LPRs who live abroad will be able to re-enter the U.S. using their Permanent Resident Cards. Those LPRs who currently live abroad, but who know that when they return to the U.S. they will need to apply for a Re-entry Permit because they plan to leave the U.S. again for more than a year and will need the permit to re-enter the next time they come to the U.S., USCIS encourages these LPRs to anticipate their need for the Re-entry Permit sufficiently in advance of their travel and, if necessary, to follow the procedures for obtaining an expedited ASC appointment where absolutely necessary. If the LPR departs from the U.S while the I-131 is pending, but before biometrics are taken, then the adjudication of the I-131 re-entry permit application will not be affected as long as the applicant returns to the U.S. to attend the biometrics appointment before the first year of foreign travel has ended. In such case, the LPR could apply for reentry to the U.S. using only his or her I-551 Permanent Resident Card if he has been absent for less than one year. We further note that if it is necessary, the LPR may make arrangements to have his Re-entry Permit delivered to him through a U.S. consulate or a USCIS office abroad.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including the web sites of Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You are also requested to visit our law firm website at: http://www.indiaimmigrationusa.com/ or http://www.indiaimmigrationusa@yahoogroups.com/ for more information about other related immigration matters. You can contact Attorney Lal Varghese at (972) 788-0777 or at (972) 788-1555, Fax (972) 556-1109 or at E-Mail: attylal@aol.com for any questions regarding this article free of any charges. We will also do an initial consultation on any immigration related legal matter on the phone free of any charges maximum to a length of five minutes as a special service to the community.
Lal Varghese, Attorney at Law, Dallas
U.S. Citizenship and Immigration Services (USCIS) has issued revised instructions for USCIS Form I-131, Application for Travel Document. The instructions include changes effective March 5, 2008 that require applicants for re-entry permits and refugee travel documents to provide biometrics (e.g., fingerprints and photographs) at a USCIS Application Support Center (ASC) for background and security checks and to meet requirements for secure travel and entry documents containing biometric identifiers.
Q. What are the new biometric changes for re-entry permits and refugee travel documents?
A. The new instructions for Form I-131 require that applicants for re-entry permits and refugee travel documents that are ages 14 through 79 provide biometrics before departing from the United States. Applicants also are strongly encouraged to apply, whenever possible, well in advance of their anticipated travel dates to allow time to attend their ASC appointments and to receive their travel documents. Shortly after filing a Form I-131 for a refugee travel document or a re-entry permit, USCIS will mail the applicant his or her receipt and an ASC scheduling notice. Certain overseas USICS offices may, in their discretion, accept and adjudicate Form I-131 filed for a refugee travel document (but not re-entry permits), where the applicant has failed to apply while in the U.S. However, applicants for refugee travel documents should not count on the overseas offices necessarily agreeing to accept and adjudicate an I-131 in all cases, particularly where it is evident that the individual could have applied while in the U.S. and attended his or her biometrics appointment.
Q. Is there a fee for the new biometrics requirement for applicants applying for re-entry permits and refugee travel documents?
A. The instructions discuss the requirement for applicants for re-entry permits and refugee travel documents who are in the United States to pay the $80 biometrics services fee, or to submit a biometrics fee waiver request with sufficient documentation to support their inability to pay the fee. As in the past, the application fee for Form I-131 cannot be waived.
Q. What are the procedures for requesting an expedited adjudication of Form I-131?
A. If applicants require expedited processing the instructions provide specific information for submitting pre-paid express mailers with the Form I-131 for USCIS to send the applicant his or her receipt and ASC appointment notice, as well as the completed re-entry permit or refugee travel document, if approved. A request for expedited processing should contain the applicant’s reasons for such processing so that USCIS may determine whether the applicant qualifies for expedited processing.
Q. Will Forms I-131 already in the pipeline that remain un-adjudicated as of 3/5/08 at the Nebraska Service Center be subject to the new biometrics requirement?
A. No, not unless USCIS determines, in a particular case, that there is a need for additional biometrics (other than the photographs that all applicants were required to submit with their I-131) for a specific reason related to the adjudication of that case, such as a question regarding the applicant’s true identity. As always, USCIS reserves its authority in such a case to request additional information, which may include biometrics. The general requirement for applicants for refugee travel permits and re-entry permits to appear for a biometrics appointment at an ASC is for applications filed on or after the effective date 03/05/08, not for the applications that are pending as of that date. Applications that were filed prior to 03/05/08 will need to contain valid photographs for document production and verification of identity. Applicants that filed prior to 03/05/08 will not be required to pay the $80 biometrics fee.
Q. How and when will applicants be notified that they must pay the additional biometrics fee?
A. The I-131 form instructions, revised on 02/26/2008, as well as the USCIS Update released on 03/05/2008 notify all applicants for refugee travel documents or re-entry permits that a $80 biometrics fee (or a properly supported fee waiver request) is necessary for processing if the person is in the age range (14 – 79) that is required to attend an ASC appointment for biometrics.
Q. Will Forms I-131 submitted/mailed before 3/5/08 but received at the NSC on 3/5/08 be subject to the new requirement?
A. No, if the applicant does not submit the biometrics fee and mailed his or her Form I-131 before 03/05/08, USCIS will process the application according the procedures in place before the Form I-131 biometrics requirement. However, as mentioned above, USCIS continues to reserve its authority to request biometrics as additional information, if needed, for the adjudication of a specific case even if the person submitted his or her application prior to 3/5/08.
Q. Do the revised Form I-131 instructions require advance parole applicants to complete biometrics? A. Applicants for advance parole are not required to submit biometrics at this time. An applicant for advance parole must continue to submit two identical color photographs of the applicant taken within 30 days of the filing of the Form I-131 application.
Q. Is e-filing available for aliens applying for a re-entry permit or a refugee travel document on the USCIS website?
A. Currently, only those who are seeking to e-file Form I-131 for advance parole would be able to use the e-filing option. The system is currently unable to accept the additional biometrics fees that are required for refugee travel documents and re-entry permits. Therefore, customers are encouraged to file via paper until the system is changed. Once the system is in place, e-filing of Form I-131 will be available for all categories.
Q. Are applicants for Form I-131 re-entry permits or refugee travel documents required to be physically present in the U.S. at the time of filing of the I-131 application?
A. While USCIS urges all applicants for refugee travel documents to anticipate their need for the document before leaving the United States and to allow sufficient time for processing and adjudication, certain USCIS overseas offices do have discretionary authority to adjudicate an application for a RTD. This option is not available for applications for re-entry permits. Applicants filing for re-entry permits must be physically present in the United States when they file the re-entry permit application. USCIS or a U.S. Department of State Embassy or Consulate can deliver re-entry permits, as well as refugee travel documents to the applicant at an overseas office if the applicant requests so at the time of filing Form I-131. To reiterate, filing of Form I-131 for a re-entry permit must be done while the person is physically present in the United States.
Q. May an I-131 applicant for a re-entry permit or refugee travel document complete biometrics outside of the United States?
A. Form I-131 instructions provide guidance for certain persons who are abroad at the time of filing to visit a U.S. Embassy or consulate for fingerprinting, although all applicants are urged to file before leaving the United States. Since certain overseas offices have the discretion to accept and adjudicate applications for refugee travel documents, although it is not mandatory that they do so, an applicant for a refugee travel document may complete biometrics outside of the United States, but is encouraged to wait to travel until his or her biometrics have been collected and the document delivered. As discussed earlier, certain overseas USCIS offices may, in their discretion, adjudicate Form I-131 filed for a refugee travel document (but not re-entry permits), where the applicant has failed to apply while in the U.S. However, applicants for refugee travel documents should not count on the overseas offices necessarily agreeing to adjudicate Form I-131 in all cases, particularly where it is evident that the individual could have applied while in the U.S. and attended his or her biometrics appointment. Applicants for reentry permits should attend their biometric appointment at the designated ASC. If the applicant departs the United States before the biometrics are collected, the application may be denied.
Q. Will Form I-131 re-entry permit or refugee travel document be denied if the applicant leaves the U.S. after the application has been filed and receipted but before biometrics are completed?
A. Form I-131 form instructions state, “Departure from the United States before a decision is made on an application for a Re-entry Permit usually does not affect the application. However, where biometric collection is required and the applicant departs the United States before the biometrics are collected, the application may be denied.” Travel is not advisable. If an applicant leaves and comes back, his or her application may be denied while abroad, and he or she may not be able to get back into the country. Even though an overseas USCIS office may, in its discretion, take the biometrics of an applicant for a refugee travel document, there is no guarantee that the office will necessarily exercise its discretion to do so. Therefore, USCIS again urges all I-131 applicants for whom biometrics will be required to file their applications well in advance of their scheduled departure dates. USCIS suggests applicants apply for a travel document at least 60 days prior to the date of travel.
Q. I am a Lawful Permanent Resident (LPR) who will be out of the US for more than 1 year? What documents will I need to return to the US?
A. To reenter the U.S. an LPR normally needs to present his or her green card (Permanent Resident Card, Form I-551). A reentry permit is needed for reentry from absences outside the U.S. that are greater than one year but less than two years in duration. Thus, if an LPR anticipates remaining outside the U.S. for longer than one year, he/she will need to apply for a reentry permit while he or she is in the U.S. (Re-entry permit may be approved IF filed by a person who is in the U.S. at the time of application)(emphasis added). An application is not complete until an individual has provided his or her fingerprints and photograph (i.e., biometrics). The newly revised I-131 instructions also provide procedures for requesting an expedited ASC appointment for biometrics collection and for requesting expedited delivery of a travel document, where needed. USCIS believes that the majority of LPRs who live abroad will be able to re-enter the U.S. using their Permanent Resident Cards. Those LPRs who currently live abroad, but who know that when they return to the U.S. they will need to apply for a Re-entry Permit because they plan to leave the U.S. again for more than a year and will need the permit to re-enter the next time they come to the U.S., USCIS encourages these LPRs to anticipate their need for the Re-entry Permit sufficiently in advance of their travel and, if necessary, to follow the procedures for obtaining an expedited ASC appointment where absolutely necessary. If the LPR departs from the U.S while the I-131 is pending, but before biometrics are taken, then the adjudication of the I-131 re-entry permit application will not be affected as long as the applicant returns to the U.S. to attend the biometrics appointment before the first year of foreign travel has ended. In such case, the LPR could apply for reentry to the U.S. using only his or her I-551 Permanent Resident Card if he has been absent for less than one year. We further note that if it is necessary, the LPR may make arrangements to have his Re-entry Permit delivered to him through a U.S. consulate or a USCIS office abroad.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including the web sites of Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You are also requested to visit our law firm website at: http://www.indiaimmigrationusa.com/ or http://www.indiaimmigrationusa@yahoogroups.com/ for more information about other related immigration matters. You can contact Attorney Lal Varghese at (972) 788-0777 or at (972) 788-1555, Fax (972) 556-1109 or at E-Mail: attylal@aol.com for any questions regarding this article free of any charges. We will also do an initial consultation on any immigration related legal matter on the phone free of any charges maximum to a length of five minutes as a special service to the community.
GENERAL INFORMATION ABOUT THE OPTIONAL PRACTICAL TRAINING INTERIM FINAL RULE (IFR) (FIRST PART)
Lal Varghese, Attorney at Law, Dallas
The new rule was published in the Federal Register on April 8, 2008. This rule establishes two new provisions that apply to all F-1 students eligible for post-completion OPT. First, extends the period in which a student may apply for post-completion OPT to 60 days after the student’s program end date. Second, establishes a limit on the number of days students in a period of post-completion OPT can be unemployed and still maintain F-1 status. For students on regular post-completion OPT or an automatic extension due to the cap-gap provisions, the limit is 90 days. Students with an approved STEM OPT extension will receive another 30 days of unemployment time for a total of 120 days over the entire period of post-completion OPT.
These provisions apply to F-1 students who are the beneficiaries of an H-1B petition who, due to the cap on the number of H-1B petitions accepted in a given year, cannot begin employment until the beginning of the fiscal year following the fiscal year in which the H-1B petition was filed. In the past, the F-1 status for these students often expired before their H-1B status began — a period known as the cap gap. This provision of the new rule automatically extends the F-1 status and, for students on post-completion OPT, the employment authorization for students formerly subject to the cap gap.
This rule allows F-1 students who are on a period of post-completion OPT approved after earning a bachelor’s, master’s, or doctoral degree in a science, technology, engineering, or math (STEM) program that is on the list of designated STEM degrees to apply for a 17-month extension of their post-completion OPT. OPT is training that is directly related to an F-1 academic student’s major area of study. It is intended to provide students with practical experience in their field of study during or upon completion of a degree program.
An F-1 academic student who has attended an SEVP-certified college, university, conservatory, or seminary on a full-time basis for at least one academic year may be authorized up to 12 months of OPT per program level. However, F-1 students who have one year or more of full-time curricular practical training are not eligible for OPT for that degree. Pre-completion OPT is OPT authorized to be worked before the student’s program end date. Students with approved pre-completion OPT may work up to 20 hours per week while school is in session. Students who are eligible to register for the next term, and who plan to do so, may have approval to work full time when school is not in session.
is Policy Guidance uses the term cap gap to refer to the period of time between the time a nonimmigrant’s F-1 student status would ordinarily end and his or her H-1B status begins. Under the previous regulation, the cap gap occurred when an F-1 student was the beneficiary of a successful H-1B petition, but his or her F-1 status ended before his or her H-1B status began. The time between the end of the F-1 status and beginning of H-1B employment was referred to as the cap gap. The most common situation occurred when the student’s OPT ended in the spring or early summer, and his or her F-1 status expired 60 days after that, leaving a gap of several months before the individual’s H-1B status began on October 1. Under the previous regulation, DHS could remedy this problem by publishing a Federal Register notice allowing students to remain in status in order to span the cap gap. However, this remedy was not automatic and did not allow the student to continue OPT during the gap period. This rule automatically extends the student’s F-1 status and work authorization.
Under the new rule, the cap-gap extension is a period in which an eligible F-1 student’s status is automatically extended to bridge the gap between the end of F-1 status and start of H-1B status. If the student is in a period of authorized post-completion OPT on or after the date the student becomes eligible for the extension, the student’s post-completion OPT is also automatically extended. A period of OPT that has been extended beyond the date on the F-1 student’s employment authorization document during an authorized cap-gap extension. An additional 17-month period of OPT granted to a student on post-completion OPT who meets the qualifications in 8 CFR 214.2(10)(ii)(C).
The 60-day period of time given to F-1 students after the completion of a program of study or an authorized period of post-completion OPT allowing the student time to prepare for departure from the United States, apply for a transfer to another SEVP-certified school, request a change of level to continue at the current school, or take steps to otherwise maintain legal status. The time spent without a qualifying job during post-completion OPT. Except as noted in the section on what counts as time unemployed, each day that the student is not employed in a qualifying job is counted toward the limit on unemployment time. The limit is 90 days for students on post-completion OPT, including those with a cap-gap extension, except that students with a STEM OPT extension are given an additional 30 days of unemployment time for a maximum of 120 days.
F-1 students may apply for post-completion OPT up to 90 days before their program end date and up to 60 days after their program end date. The application must be properly filed with the correct USCIS Service Center. In addition, the application must be properly filed within 30 days of the date the student’s DSO recommends OPT in SEVIS. A student should ask his or her DSO to recommend post-completion OPT within 30 days of the date the student expects the application to arrive at the USCIS Service Center. If the OPT recommendation in SEVIS is dated more than 30 days prior to the receipt date, the application may be denied. A student may file the request for post-completion OPT no more than 90 days prior to the student’s program end date. A student may file for OPT up to 90 days before he or she completes a full academic year.
If the student has already completed a full academic year, he or she may apply for OPT up to 90 days in advance of the requested employment start date. A student may file for the 17-month STEM extension up to 120 days prior to the end of his or her post-completion OPT. The new regulatory provisions differentiate between pre-and post-completion OPT in the application process and in the requirements for maintaining employment and it cannot be combined. Any OPT authorization ends on the transfer release date for a student who requests a transfer to another SEVP-certified school or a change of education level to continue at the same school. Students on post-completion OPT may accrue up to 90 days of unemployment. Students who have OPT extended due to the cap-gap provisions continue to accrue unemployment time and are subject to the 90-day limitation on unemployment. Students who receive a 17-month STEM OPT extension are given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period. (To be continued in the next issue)
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including the web sites of Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You are also requested to visit our law firm website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa@yahoogroups.com for more information about other related immigration matters. You can contact Attorney Lal Varghese at (972) 788-0777 or at (972) 788-1555, Fax (972) 556-1109 or at E-Mail: attylal@aol.com for any questions regarding this article free of any charges. We will also do an initial consultation on any immigration related legal matter on the phone free of any charges maximum to a length of five minutes as a special service to the community.
Lal Varghese, Attorney at Law, Dallas
The new rule was published in the Federal Register on April 8, 2008. This rule establishes two new provisions that apply to all F-1 students eligible for post-completion OPT. First, extends the period in which a student may apply for post-completion OPT to 60 days after the student’s program end date. Second, establishes a limit on the number of days students in a period of post-completion OPT can be unemployed and still maintain F-1 status. For students on regular post-completion OPT or an automatic extension due to the cap-gap provisions, the limit is 90 days. Students with an approved STEM OPT extension will receive another 30 days of unemployment time for a total of 120 days over the entire period of post-completion OPT.
These provisions apply to F-1 students who are the beneficiaries of an H-1B petition who, due to the cap on the number of H-1B petitions accepted in a given year, cannot begin employment until the beginning of the fiscal year following the fiscal year in which the H-1B petition was filed. In the past, the F-1 status for these students often expired before their H-1B status began — a period known as the cap gap. This provision of the new rule automatically extends the F-1 status and, for students on post-completion OPT, the employment authorization for students formerly subject to the cap gap.
This rule allows F-1 students who are on a period of post-completion OPT approved after earning a bachelor’s, master’s, or doctoral degree in a science, technology, engineering, or math (STEM) program that is on the list of designated STEM degrees to apply for a 17-month extension of their post-completion OPT. OPT is training that is directly related to an F-1 academic student’s major area of study. It is intended to provide students with practical experience in their field of study during or upon completion of a degree program.
An F-1 academic student who has attended an SEVP-certified college, university, conservatory, or seminary on a full-time basis for at least one academic year may be authorized up to 12 months of OPT per program level. However, F-1 students who have one year or more of full-time curricular practical training are not eligible for OPT for that degree. Pre-completion OPT is OPT authorized to be worked before the student’s program end date. Students with approved pre-completion OPT may work up to 20 hours per week while school is in session. Students who are eligible to register for the next term, and who plan to do so, may have approval to work full time when school is not in session.
is Policy Guidance uses the term cap gap to refer to the period of time between the time a nonimmigrant’s F-1 student status would ordinarily end and his or her H-1B status begins. Under the previous regulation, the cap gap occurred when an F-1 student was the beneficiary of a successful H-1B petition, but his or her F-1 status ended before his or her H-1B status began. The time between the end of the F-1 status and beginning of H-1B employment was referred to as the cap gap. The most common situation occurred when the student’s OPT ended in the spring or early summer, and his or her F-1 status expired 60 days after that, leaving a gap of several months before the individual’s H-1B status began on October 1. Under the previous regulation, DHS could remedy this problem by publishing a Federal Register notice allowing students to remain in status in order to span the cap gap. However, this remedy was not automatic and did not allow the student to continue OPT during the gap period. This rule automatically extends the student’s F-1 status and work authorization.
Under the new rule, the cap-gap extension is a period in which an eligible F-1 student’s status is automatically extended to bridge the gap between the end of F-1 status and start of H-1B status. If the student is in a period of authorized post-completion OPT on or after the date the student becomes eligible for the extension, the student’s post-completion OPT is also automatically extended. A period of OPT that has been extended beyond the date on the F-1 student’s employment authorization document during an authorized cap-gap extension. An additional 17-month period of OPT granted to a student on post-completion OPT who meets the qualifications in 8 CFR 214.2(10)(ii)(C).
The 60-day period of time given to F-1 students after the completion of a program of study or an authorized period of post-completion OPT allowing the student time to prepare for departure from the United States, apply for a transfer to another SEVP-certified school, request a change of level to continue at the current school, or take steps to otherwise maintain legal status. The time spent without a qualifying job during post-completion OPT. Except as noted in the section on what counts as time unemployed, each day that the student is not employed in a qualifying job is counted toward the limit on unemployment time. The limit is 90 days for students on post-completion OPT, including those with a cap-gap extension, except that students with a STEM OPT extension are given an additional 30 days of unemployment time for a maximum of 120 days.
F-1 students may apply for post-completion OPT up to 90 days before their program end date and up to 60 days after their program end date. The application must be properly filed with the correct USCIS Service Center. In addition, the application must be properly filed within 30 days of the date the student’s DSO recommends OPT in SEVIS. A student should ask his or her DSO to recommend post-completion OPT within 30 days of the date the student expects the application to arrive at the USCIS Service Center. If the OPT recommendation in SEVIS is dated more than 30 days prior to the receipt date, the application may be denied. A student may file the request for post-completion OPT no more than 90 days prior to the student’s program end date. A student may file for OPT up to 90 days before he or she completes a full academic year.
If the student has already completed a full academic year, he or she may apply for OPT up to 90 days in advance of the requested employment start date. A student may file for the 17-month STEM extension up to 120 days prior to the end of his or her post-completion OPT. The new regulatory provisions differentiate between pre-and post-completion OPT in the application process and in the requirements for maintaining employment and it cannot be combined. Any OPT authorization ends on the transfer release date for a student who requests a transfer to another SEVP-certified school or a change of education level to continue at the same school. Students on post-completion OPT may accrue up to 90 days of unemployment. Students who have OPT extended due to the cap-gap provisions continue to accrue unemployment time and are subject to the 90-day limitation on unemployment. Students who receive a 17-month STEM OPT extension are given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period. (To be continued in the next issue)
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including the web sites of Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You are also requested to visit our law firm website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa@yahoogroups.com for more information about other related immigration matters. You can contact Attorney Lal Varghese at (972) 788-0777 or at (972) 788-1555, Fax (972) 556-1109 or at E-Mail: attylal@aol.com for any questions regarding this article free of any charges. We will also do an initial consultation on any immigration related legal matter on the phone free of any charges maximum to a length of five minutes as a special service to the community.
Cap Count for H-1B and H-2B Workers for Fiscal Year 2010
Lal Varghese, Attorney at Law, Dallas
The word "Cap" refers to annual numerical limitations set by Congress on certain nonimmigrant visa classifications, e.g., H-1B and H-2B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular nonimmigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification. The immigration fiscal year begins from October 1 and ends on September 30 of next year.
The H-1B visa program is used by some U.S. employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field and a bachelor's degree or its equivalent. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The H-1B visa program also includes certain fashion models of distinguished merit and ability and up to 100 persons who will be performing services of an exceptional nature in connection with Department of Defense (DOD) research and development projects or coproduction projects. The current annual cap on the H-1B category is 65,000. Not all H-1B non-immigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. Hence, the actual numbers available for regular H1-B program in a fiscal year is limited to 58,200 visas.
H-1B non-immigrants who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap. Please remember that this does not apply to regular Non Profit organizations like churches, mosques or temples unless they are affiliated to institutions of higher education.
The H-1B Visa Reform Act of 2004 makes available 20,000 new H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution. For each fiscal year, 20,000 beneficiaries of H-1B petitions on behalf of persons who hold such credentials are statutorily exempted from the cap.
USCIS will deny or revoke all petitions filed by an employer for the same H-1B worker if more than one filing is discovered. If multiple petitions are discovered, whether one or more such petitions are approved, USCIS will data enter all those duplicative petitions, retain all fees, and either deny the petitions or, if a petition was approved, revoke the petition. The petitions will not be returned to the petitioner.
As of May 1, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
An H-1B1 may be also is a national of Chile or Singapore coming to the United States to work temporarily in a specialty occupation. The law defines an H-1B1 specialty occupation as a position that requires theoretical and practical application of a body of specialized knowledge. The beneficiary must have a bachelor's degree or higher (or equivalent) in the specific specialty. The combined statutory limit is 6,800 per year. The cap for H-1B1 for FY2010 has not been reached as of the date of this Update.
The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.
The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual numerical limitations of 66,000 into two halves. As of FY 2010, an H-2B petition may not be filed more than 120 days before the date of the actual need for the H-2B worker's labor/services identified on the labor certification. As a result, USCIS normally begins receiving H-2B petitions with employment start dates in October and June. The H-2B numerical limit set by Congress per fiscal year is 66,000. Generally, an H-2B worker who extends his/her stay in H-2B status will not be counted again against the numerical limit. An alien who changes nonimmigrant status to H-2B is counted against the annual H-2B cap.
The H-3 nonimmigrant visa category is for aliens who are coming temporarily to the U.S. to receive training (other than graduate medical education or training) that is not available in their home countries. The training may be provided by a business entity, academic, or vocational institute. The H-3 nonimmigrant visa category also includes aliens who are coming temporarily to the U.S. to participate in a special education training program for children with physical, mental, or emotional disabilities. There is a limit of 50 visas per fiscal year allocated to H-3 aliens participating in special education training programs. As of March 30, 2009, three of these H-3 visas had been approved with a start date in FY 2009.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including the web sites of Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You are also requested to visit our law firm website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa@yahoogroups.com for more information about other related immigration matters. You can contact Attorney Lal Varghese at (972) 788-0777 or at (972) 788-1555, Fax (972) 556-1109 or at E-Mail: attylal@aol.com for any questions regarding this article free of any charges. We will also do an initial consultation on any immigration related legal matter on the phone free of any charges maximum to a length of five minutes as a special service to the community.
Lal Varghese, Attorney at Law, Dallas
The word "Cap" refers to annual numerical limitations set by Congress on certain nonimmigrant visa classifications, e.g., H-1B and H-2B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular nonimmigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification. The immigration fiscal year begins from October 1 and ends on September 30 of next year.
The H-1B visa program is used by some U.S. employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field and a bachelor's degree or its equivalent. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The H-1B visa program also includes certain fashion models of distinguished merit and ability and up to 100 persons who will be performing services of an exceptional nature in connection with Department of Defense (DOD) research and development projects or coproduction projects. The current annual cap on the H-1B category is 65,000. Not all H-1B non-immigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. Hence, the actual numbers available for regular H1-B program in a fiscal year is limited to 58,200 visas.
H-1B non-immigrants who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap. Please remember that this does not apply to regular Non Profit organizations like churches, mosques or temples unless they are affiliated to institutions of higher education.
The H-1B Visa Reform Act of 2004 makes available 20,000 new H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution. For each fiscal year, 20,000 beneficiaries of H-1B petitions on behalf of persons who hold such credentials are statutorily exempted from the cap.
USCIS will deny or revoke all petitions filed by an employer for the same H-1B worker if more than one filing is discovered. If multiple petitions are discovered, whether one or more such petitions are approved, USCIS will data enter all those duplicative petitions, retain all fees, and either deny the petitions or, if a petition was approved, revoke the petition. The petitions will not be returned to the petitioner.
As of May 1, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
An H-1B1 may be also is a national of Chile or Singapore coming to the United States to work temporarily in a specialty occupation. The law defines an H-1B1 specialty occupation as a position that requires theoretical and practical application of a body of specialized knowledge. The beneficiary must have a bachelor's degree or higher (or equivalent) in the specific specialty. The combined statutory limit is 6,800 per year. The cap for H-1B1 for FY2010 has not been reached as of the date of this Update.
The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.
The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual numerical limitations of 66,000 into two halves. As of FY 2010, an H-2B petition may not be filed more than 120 days before the date of the actual need for the H-2B worker's labor/services identified on the labor certification. As a result, USCIS normally begins receiving H-2B petitions with employment start dates in October and June. The H-2B numerical limit set by Congress per fiscal year is 66,000. Generally, an H-2B worker who extends his/her stay in H-2B status will not be counted again against the numerical limit. An alien who changes nonimmigrant status to H-2B is counted against the annual H-2B cap.
The H-3 nonimmigrant visa category is for aliens who are coming temporarily to the U.S. to receive training (other than graduate medical education or training) that is not available in their home countries. The training may be provided by a business entity, academic, or vocational institute. The H-3 nonimmigrant visa category also includes aliens who are coming temporarily to the U.S. to participate in a special education training program for children with physical, mental, or emotional disabilities. There is a limit of 50 visas per fiscal year allocated to H-3 aliens participating in special education training programs. As of March 30, 2009, three of these H-3 visas had been approved with a start date in FY 2009.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including the web sites of Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You are also requested to visit our law firm website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa@yahoogroups.com for more information about other related immigration matters. You can contact Attorney Lal Varghese at (972) 788-0777 or at (972) 788-1555, Fax (972) 556-1109 or at E-Mail: attylal@aol.com for any questions regarding this article free of any charges. We will also do an initial consultation on any immigration related legal matter on the phone free of any charges maximum to a length of five minutes as a special service to the community.
DLO Publishes Final Rule Prohibiting Substitution of Labor Certifications with Effect From July 16, 2007
Lal Varghese, Attorney at Law, Dallas
The Department of Labor (DOL) has amended its regulations to enhance integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States. The final rule includes several major provisions which prohibit the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications. The final rule provides a 180-day validity period for approved labor certifications; employers will have 180 calendar days within which to file an approved permanent labor certification in support of Immigrant Petition for Alien Worker with the Department of Homeland Security (DHS). The rule prohibits the sale, barter or purchase of permanent labor certifications and applications. In addition, this rule requires employers to pay the costs of preparing, filing and obtaining certification. An employer's transfer to the alien beneficiary of the employer's costs incurred in the labor certification or application process is strictly prohibited. The rule makes clear an alien may pay his or her own legitimate costs in the permanent labor certification process, including attorneys' fees for representation of the alien. The rule also reinforces existing law pertaining to the submission of fraudulent or false information and clarifies current DOL procedures for responding to incidents of possible fraud. Finally, the rule establishes procedures for debarment of employer’s from taking part in the permanent labor certification program if fraud is committed.
Consistent with the proposed rule, the provisions in this final rule apply to permanent labor certification applications and approved certifications filed under both the Program Electronic Review Management (PERM) program regulation effective March 28, 2005, and prior regulations implementing the permanent labor certification program. This rule also clarifies the Department's ``no modifications'' policy for applications filed on or after March 28, 2005, under the new, streamlined PERM process. The final rule is effective from July 16, 2007.
The purpose of the final rule is to impose clear limitations on the acquisition and use of permanent labor certification applications and permanent labor certifications in order to reduce incentives and opportunities for fraud and abuse in the permanent labor certification program. It also promulgates key measures to enhance the integrity of the permanent labor certification program. This Final rule continues efforts the Department initiated several years ago to construct a deliberate, coordinated fraud reduction and prevention framework within the permanent labor certification program. The Department laid the groundwork for greater integrity and security during the planning and promulgation of the 2004 Final rule to implement the re-engineered PERM system. While fraud prevention has always been a goal of the Department's labor certification programs, the continuing program experience and that of other Federal agencies has demonstrated the need to focus on the specific opportunities for fraud and abuse addressed in this rule.
The INA does not specifically address substitution of aliens in the permanent labor certification process. Similarly, the Department of Labor's regulations are silent on the question of substitution. On May 6, 2002, the Department published a Notice of Proposed Rulemaking (NPRM) to streamline the permanent labor certification program. A Final rule implementing the streamlined permanent labor certification program was published on December 27, 2004, and took effect on March 28, 2005. The old rule governs processing of permanent labor certification applications filed prior to March 28, 2005, except where certain provisions of this final rule will impact such applications. Previously filed applications may be re-filed under the new PERM rule.
To obtain permanent alien workers, U.S. employers generally must engage in a multi-step process that involves DOL and DHS and, in some instances, DOS. The INA classifies employment-based (EB) immigrant workers into categories, e.g., EB-2 and EB-3, based on the general job requirements and the perceived benefit to American society. U.S. employers must demonstrate that the requested job requirements, and in some cases the alien, fit into one of these classifications. The first step in the process for the EB-2 and EB-3 classifications generally begins with the U.S. employer filing a labor certification application with DOL. The U.S. employer must demonstrate to DOL, through a test of the labor market, that there are no U.S. workers able, willing, qualified, and available at the time of the application for a visa and admission to the United States and at the place where the alien is to perform the work. The employer must also demonstrate that the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. Following review of the permanent labor certification application, recruitment report and other supporting documents and evidence the DOL will either certify or deny the application for employment of the foreign worker.
If the Labor Certification is approved the next step is to file the Immigrant Petition for Alien Worker with the United States Citizenship and Immigration Services (USCIS), within DHS, by a U.S. employer for a prospective permanent alien employee. Most petitions filed under section 203(b)(2) and (3) of the Act, the EB-2 and EB-3 classifications, must be accompanied by an approved labor certification issued by DOL. DHS has established procedures for filing immigrant petitions by employers for alien workers.
DHS reviews the approved labor certification in conjunction with the immigrant petition and other supporting documents to evaluate whether the position being offered to the alien named in the petition is the same as the position specified on the labor certification and whether the employment qualifies for the immigrant classification requested by the employer. In addition, DHS evaluates the alien's education, training, and work experience to determine whether the particular alien meets the job requirements specified on the labor certification. The approved labor certification is also used to establish the priority date for which an immigrant visa will be made available to the alien, based on the date the labor certification application was originally filed.
Although not mentioned in the rules, ETA has for years informally allowed employers to substitute an alien named on a pending or approved labor certification with another prospective alien employee. Labor certification substitution has occurred either while the permanent labor certification application is pending at DOL or by DOL's delegation to DHS while immigrant petition filed with an approved labor certification, is pending with DHS. Historically, this substitution practice was permitted as an accommodation to U.S. employers due to the length of time it took to obtain a permanent labor certification or receive approval of the immigrant petition.
Currently, the regulations do not set any validity period on a permanent labor certification and, thus, permanent labor certifications are valid indefinitely. Also, DOL regulations do not address payments related to the permanent labor certification program or debarment authority. In this final rule, the department addresses problems that have arisen related to substitution, lack of a validity period for certifications, and payment of fee to attorneys both by the employer and alien worker related to the permanent labor certification program.
The final rule builds on the foundation laid in the 2004 implementing the streamlined permanent program and follows through on the strong commitment reflected in the NPRM for this rulemaking, culminating a multi-year effort to enhance integrity and fraud prevention mechanisms in the permanent labor certification program. To assist compliance and enforcement under this rule, the department is reviewing available resources to determine its ability to establish a new toll-free telephone number, or to develop other means, to receive reports of potential violations.
The final rule prohibits the sale, barter, and purchase of applications and approved labor certifications, as well as certain payments to employers in compensation or reimbursement for the employer's costs incurred to obtain labor certification. This ban will apply to all such transactions on or after the effective date of the final rule regardless of whether the labor certification application involved was filed on or before March 28, 2005 or after such effective date. As explained in the NPRM, this regulatory change has no retroactive effect on substitutions approved by the Department or DHS prior to the final rule's effective date. As made implicit by the new rule the final rule also has no retroactive effect on substitution requests in progress (submitted) prior to this rule taking effect.
Lal Varghese, Attorney at Law, Dallas
The Department of Labor (DOL) has amended its regulations to enhance integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States. The final rule includes several major provisions which prohibit the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications. The final rule provides a 180-day validity period for approved labor certifications; employers will have 180 calendar days within which to file an approved permanent labor certification in support of Immigrant Petition for Alien Worker with the Department of Homeland Security (DHS). The rule prohibits the sale, barter or purchase of permanent labor certifications and applications. In addition, this rule requires employers to pay the costs of preparing, filing and obtaining certification. An employer's transfer to the alien beneficiary of the employer's costs incurred in the labor certification or application process is strictly prohibited. The rule makes clear an alien may pay his or her own legitimate costs in the permanent labor certification process, including attorneys' fees for representation of the alien. The rule also reinforces existing law pertaining to the submission of fraudulent or false information and clarifies current DOL procedures for responding to incidents of possible fraud. Finally, the rule establishes procedures for debarment of employer’s from taking part in the permanent labor certification program if fraud is committed.
Consistent with the proposed rule, the provisions in this final rule apply to permanent labor certification applications and approved certifications filed under both the Program Electronic Review Management (PERM) program regulation effective March 28, 2005, and prior regulations implementing the permanent labor certification program. This rule also clarifies the Department's ``no modifications'' policy for applications filed on or after March 28, 2005, under the new, streamlined PERM process. The final rule is effective from July 16, 2007.
The purpose of the final rule is to impose clear limitations on the acquisition and use of permanent labor certification applications and permanent labor certifications in order to reduce incentives and opportunities for fraud and abuse in the permanent labor certification program. It also promulgates key measures to enhance the integrity of the permanent labor certification program. This Final rule continues efforts the Department initiated several years ago to construct a deliberate, coordinated fraud reduction and prevention framework within the permanent labor certification program. The Department laid the groundwork for greater integrity and security during the planning and promulgation of the 2004 Final rule to implement the re-engineered PERM system. While fraud prevention has always been a goal of the Department's labor certification programs, the continuing program experience and that of other Federal agencies has demonstrated the need to focus on the specific opportunities for fraud and abuse addressed in this rule.
The INA does not specifically address substitution of aliens in the permanent labor certification process. Similarly, the Department of Labor's regulations are silent on the question of substitution. On May 6, 2002, the Department published a Notice of Proposed Rulemaking (NPRM) to streamline the permanent labor certification program. A Final rule implementing the streamlined permanent labor certification program was published on December 27, 2004, and took effect on March 28, 2005. The old rule governs processing of permanent labor certification applications filed prior to March 28, 2005, except where certain provisions of this final rule will impact such applications. Previously filed applications may be re-filed under the new PERM rule.
To obtain permanent alien workers, U.S. employers generally must engage in a multi-step process that involves DOL and DHS and, in some instances, DOS. The INA classifies employment-based (EB) immigrant workers into categories, e.g., EB-2 and EB-3, based on the general job requirements and the perceived benefit to American society. U.S. employers must demonstrate that the requested job requirements, and in some cases the alien, fit into one of these classifications. The first step in the process for the EB-2 and EB-3 classifications generally begins with the U.S. employer filing a labor certification application with DOL. The U.S. employer must demonstrate to DOL, through a test of the labor market, that there are no U.S. workers able, willing, qualified, and available at the time of the application for a visa and admission to the United States and at the place where the alien is to perform the work. The employer must also demonstrate that the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. Following review of the permanent labor certification application, recruitment report and other supporting documents and evidence the DOL will either certify or deny the application for employment of the foreign worker.
If the Labor Certification is approved the next step is to file the Immigrant Petition for Alien Worker with the United States Citizenship and Immigration Services (USCIS), within DHS, by a U.S. employer for a prospective permanent alien employee. Most petitions filed under section 203(b)(2) and (3) of the Act, the EB-2 and EB-3 classifications, must be accompanied by an approved labor certification issued by DOL. DHS has established procedures for filing immigrant petitions by employers for alien workers.
DHS reviews the approved labor certification in conjunction with the immigrant petition and other supporting documents to evaluate whether the position being offered to the alien named in the petition is the same as the position specified on the labor certification and whether the employment qualifies for the immigrant classification requested by the employer. In addition, DHS evaluates the alien's education, training, and work experience to determine whether the particular alien meets the job requirements specified on the labor certification. The approved labor certification is also used to establish the priority date for which an immigrant visa will be made available to the alien, based on the date the labor certification application was originally filed.
Although not mentioned in the rules, ETA has for years informally allowed employers to substitute an alien named on a pending or approved labor certification with another prospective alien employee. Labor certification substitution has occurred either while the permanent labor certification application is pending at DOL or by DOL's delegation to DHS while immigrant petition filed with an approved labor certification, is pending with DHS. Historically, this substitution practice was permitted as an accommodation to U.S. employers due to the length of time it took to obtain a permanent labor certification or receive approval of the immigrant petition.
Currently, the regulations do not set any validity period on a permanent labor certification and, thus, permanent labor certifications are valid indefinitely. Also, DOL regulations do not address payments related to the permanent labor certification program or debarment authority. In this final rule, the department addresses problems that have arisen related to substitution, lack of a validity period for certifications, and payment of fee to attorneys both by the employer and alien worker related to the permanent labor certification program.
The final rule builds on the foundation laid in the 2004 implementing the streamlined permanent program and follows through on the strong commitment reflected in the NPRM for this rulemaking, culminating a multi-year effort to enhance integrity and fraud prevention mechanisms in the permanent labor certification program. To assist compliance and enforcement under this rule, the department is reviewing available resources to determine its ability to establish a new toll-free telephone number, or to develop other means, to receive reports of potential violations.
The final rule prohibits the sale, barter, and purchase of applications and approved labor certifications, as well as certain payments to employers in compensation or reimbursement for the employer's costs incurred to obtain labor certification. This ban will apply to all such transactions on or after the effective date of the final rule regardless of whether the labor certification application involved was filed on or before March 28, 2005 or after such effective date. As explained in the NPRM, this regulatory change has no retroactive effect on substitutions approved by the Department or DHS prior to the final rule's effective date. As made implicit by the new rule the final rule also has no retroactive effect on substitution requests in progress (submitted) prior to this rule taking effect.
Immigrant and Non Immigrant Visas for Registered Nurses (RN)
There are numerous options for foreign nationals who wish to work in the US as registered nurses, most of which allow only temporary residence in the US, but one of which is a way of obtaining permanent residence.
H-1C Visas
In 1999, Congress passed the Nursing Relief for Disadvantaged Areas Act, which calls for the creation of a new H-1C visa for nurses going to work for up to three years in health professional shortage areas. There are only 500 H-1C visas available each year, and no more than 25 H-1C nurses can be sent to one state in a year. Under the law, facilities interested in sponsoring nurses for H-1C visas must submit a document containing a number of attestations regarding the employment of H-1C nurses. As of early 2001, no H-1C visas had been approved. The H-1C visa is very similar to the H-1A visa for nurses. That visa category expired several years ago after efforts to extend its life were unsuccessful. The key differences are that a much smaller number of H-1C visas have been allocated and that the facility must be in a health professional shortage area. There are also new requirements limit a facility’s dependence on H-1C nurses.
TN Visas
TN visas were created by the North American Free Trade Agreement, and are available to Canadian and Mexican citizens who are coming to the US to work in activities at a professional level. These are defined to require at least a bachelor’s degree or specified credentials, and experience demonstrating that the beneficiary is a professional. Among the professions covered is that of registered nurse. To obtain a TN visa, the nurse must collect a letter from the prospective employer containing the job offer, their diploma (if the degree is from Canada or Mexico, it must be evaluated), and all licenses and professional memberships. They will also need to obtain a letter outlining the professional nature of the job, the proposed length of stay, the beneficiary’s educational credentials, evidence that the beneficiary has the required state license, and how the beneficiary will be paid. Canadian nurses can present this evidence at a port of entry without prior approval by the USCIS. They will be given leave to enter the US for one year. Applications for extensions may be filed, and there is no limit on the amount of time a person can remain in the US on a TN visa. Mexican nurses go through a different process. They must submit a labor condition application to the Department of Labor and they must submit an application for a TN visa with the USCIS. Also, while there is no limit on the number of TN visas that can be issued to Canadians, there is an annual limit of 5,500 for Mexican citizens.
H-1B Visas
Since the expiration of the H-1A category, registered nurses have been allowed to seek H-1B visas. However, the USCIS takes a narrow view of the ability of a nurse to qualify in the H-1B category and most registered nurses will not be able to obtain an H-1B visa. This is because H-1B visas require a bachelor’s degree to be the minimum qualification for entering the field and the USCIS takes the position that a bachelor’s degree is not required to be a registered nurse. However, in some cases, nurses can obtain H-1B visas. For example, nurses who will be working in a supervisory or highly specialized capacity might be able to obtain one, and if the facility demonstrates that it requires all the nurses it employs to possess a bachelor’s degree, obtaining an H-1B visa will be easier.
IMMIGRANT VISAS (GREEN CARDS)
The Department of Labor has determined that there are some job occupations in which there is a chronic shortage of workers, one of which is registered nursing. Nurses who have passed the Commission on Graduates of Foreign Nursing Schools Examination or possess an unrestricted license to practice nursing in the state in which they intend to work are eligible to seek a Schedule A labor certification. The effect of the Schedule A classification is that the position is “pre-certified” and no application needs to be filed with the Department of Labor. Instead, the Labor Certification application, Immigrant Petition can be filed together directly with the USCIS.
Section 343 of IIRAIRA specifically requires a certificate either from the Commission on Graduates of Foreign Nursing Schools ("CGFNS") or "a certificate from an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services. The certification must verify that 1) the alien's education, training, license, and experience meet all applicable statutory and regulatory requirements for entry into the United States under the classification specified in the application; are comparable with that required for an American health-care worker of the same type; and are authentic and, in the case of a license, unencumbered; 2) the alien has the level of competence in oral and written English considered by the Secretary of Health and Human Services, in consultation with the Secretary of Education, to be appropriate for health care work of the kind in which the alien will be engaged, as shown by an appropriate score on one or more nationally recognized, commercially available, standardized assessments of the applicant's ability to speak and write; and 3) if a majority of States licensing the profession in which the alien intends to work recognize a test predicting the success on the profession's licensing or certification examination, the alien has passed such a test or has passed such an examination.
The USCIS has found that the CGFNS for nurses meets the statutory requirements for credentialing. CGFNS has established Visa Screen program, administered by its International Commission on Healthcare Professions division. For nurses, the Department of Health and Human Services has approved two testing services to test oral and written competency in English appropriate for the kind of health care work in which the alien will be engaged. The two approved services are the Educational Testing Service (ETS) and the Michigan English Language Assessment Battery (MELAB). Based on HHS standards, a Registered Nurse must obtain at least the following scores on the TOEFL 540 (paper based) or 207 (computer based): Test of Written English 4.0; Test of Spoken English 50; or MELAB final score 79 oral score 3+. There are no exceptions to the credentialing requirement, even for nurses educated in the US.
There are numerous options for foreign nationals who wish to work in the US as registered nurses, most of which allow only temporary residence in the US, but one of which is a way of obtaining permanent residence.
H-1C Visas
In 1999, Congress passed the Nursing Relief for Disadvantaged Areas Act, which calls for the creation of a new H-1C visa for nurses going to work for up to three years in health professional shortage areas. There are only 500 H-1C visas available each year, and no more than 25 H-1C nurses can be sent to one state in a year. Under the law, facilities interested in sponsoring nurses for H-1C visas must submit a document containing a number of attestations regarding the employment of H-1C nurses. As of early 2001, no H-1C visas had been approved. The H-1C visa is very similar to the H-1A visa for nurses. That visa category expired several years ago after efforts to extend its life were unsuccessful. The key differences are that a much smaller number of H-1C visas have been allocated and that the facility must be in a health professional shortage area. There are also new requirements limit a facility’s dependence on H-1C nurses.
TN Visas
TN visas were created by the North American Free Trade Agreement, and are available to Canadian and Mexican citizens who are coming to the US to work in activities at a professional level. These are defined to require at least a bachelor’s degree or specified credentials, and experience demonstrating that the beneficiary is a professional. Among the professions covered is that of registered nurse. To obtain a TN visa, the nurse must collect a letter from the prospective employer containing the job offer, their diploma (if the degree is from Canada or Mexico, it must be evaluated), and all licenses and professional memberships. They will also need to obtain a letter outlining the professional nature of the job, the proposed length of stay, the beneficiary’s educational credentials, evidence that the beneficiary has the required state license, and how the beneficiary will be paid. Canadian nurses can present this evidence at a port of entry without prior approval by the USCIS. They will be given leave to enter the US for one year. Applications for extensions may be filed, and there is no limit on the amount of time a person can remain in the US on a TN visa. Mexican nurses go through a different process. They must submit a labor condition application to the Department of Labor and they must submit an application for a TN visa with the USCIS. Also, while there is no limit on the number of TN visas that can be issued to Canadians, there is an annual limit of 5,500 for Mexican citizens.
H-1B Visas
Since the expiration of the H-1A category, registered nurses have been allowed to seek H-1B visas. However, the USCIS takes a narrow view of the ability of a nurse to qualify in the H-1B category and most registered nurses will not be able to obtain an H-1B visa. This is because H-1B visas require a bachelor’s degree to be the minimum qualification for entering the field and the USCIS takes the position that a bachelor’s degree is not required to be a registered nurse. However, in some cases, nurses can obtain H-1B visas. For example, nurses who will be working in a supervisory or highly specialized capacity might be able to obtain one, and if the facility demonstrates that it requires all the nurses it employs to possess a bachelor’s degree, obtaining an H-1B visa will be easier.
IMMIGRANT VISAS (GREEN CARDS)
The Department of Labor has determined that there are some job occupations in which there is a chronic shortage of workers, one of which is registered nursing. Nurses who have passed the Commission on Graduates of Foreign Nursing Schools Examination or possess an unrestricted license to practice nursing in the state in which they intend to work are eligible to seek a Schedule A labor certification. The effect of the Schedule A classification is that the position is “pre-certified” and no application needs to be filed with the Department of Labor. Instead, the Labor Certification application, Immigrant Petition can be filed together directly with the USCIS.
Section 343 of IIRAIRA specifically requires a certificate either from the Commission on Graduates of Foreign Nursing Schools ("CGFNS") or "a certificate from an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services. The certification must verify that 1) the alien's education, training, license, and experience meet all applicable statutory and regulatory requirements for entry into the United States under the classification specified in the application; are comparable with that required for an American health-care worker of the same type; and are authentic and, in the case of a license, unencumbered; 2) the alien has the level of competence in oral and written English considered by the Secretary of Health and Human Services, in consultation with the Secretary of Education, to be appropriate for health care work of the kind in which the alien will be engaged, as shown by an appropriate score on one or more nationally recognized, commercially available, standardized assessments of the applicant's ability to speak and write; and 3) if a majority of States licensing the profession in which the alien intends to work recognize a test predicting the success on the profession's licensing or certification examination, the alien has passed such a test or has passed such an examination.
The USCIS has found that the CGFNS for nurses meets the statutory requirements for credentialing. CGFNS has established Visa Screen program, administered by its International Commission on Healthcare Professions division. For nurses, the Department of Health and Human Services has approved two testing services to test oral and written competency in English appropriate for the kind of health care work in which the alien will be engaged. The two approved services are the Educational Testing Service (ETS) and the Michigan English Language Assessment Battery (MELAB). Based on HHS standards, a Registered Nurse must obtain at least the following scores on the TOEFL 540 (paper based) or 207 (computer based): Test of Written English 4.0; Test of Spoken English 50; or MELAB final score 79 oral score 3+. There are no exceptions to the credentialing requirement, even for nurses educated in the US.
Child Stats Protection Act (CSPA) Allows Children Over 21 to Obtain Visas with Parents
Children Over 21 may immigrate with parents in Certain Categories under the New Child Status Protection Act (CSPA) Passed by Congress Compiled by Lal Varghese, Attorney at Law, Dallas
“The Child Status Protection Act” (CSPA) had been passed by the US Congress to address the problem of minor children losing their eligibility for certain immigration benefits as a result of USCIS or consular delays in processing the petition or application for immigrant visas. The CSPA protects the immediate relative child of a US citizen parent, children of permanent residents as well as children of asylum and refugee applicants. Prior to the enactment of CSPA, the child’s age was determined at the time of adjudicating the grant of permanent residence or the issuance of immigrant visa. The CSPA introduces earlier points of time when the child’s age is determined, after which it does not matter if the child crosses 21.
Children of US Citizens CSPA extends benefits to children of US citizens in the immediate relative (IR) category (minor children under 21 of US citizens) under three specific situations: 1. The child’s age will be determined on the date on which the immigrant petition for Alien Relative is filed, as opposed to when the application is adjudicated for permanent residence or the visa is issued by the consular officer.2. In the case of a child sponsored under the family-based second preference (2A) (unmarried minor children under 21 of permanent residents), which subsequently is converted to an immediate relative petition based upon the parent’s naturalization, the child’s eligibility for immediate relative status will be determined based upon the date of his or her parent’s naturalization. 3. If the US citizen parent filed a petition for a married son or daughter (under the third preference for married sons and daughters of US citizens) and such son or daughter later divorces, resulting in the original third preference petition later being converted to an immediate relative petition, the child’s eligibility for immediate relative status will be determined based upon his or her age on the date of the divorce. This provision would only be applicable in the case of a married son or daughter who divorces before the age of 21.
Children of Permanent Residents CSPA also extends “age-out” protection to the children of lawful permanent residents. This includes children who have been directly sponsored by their parents or who are accompanying or following to join family-sponsored, employment-based, and diversity immigrants. The age of the alien child is determined on the date on which an immigrant visa number becomes available, reduced by the number of days the petition was “pending.” This provision triggers only if the alien child has sought to acquire permanent residence within one year of such availability. For instance, if the alien child is 22 years old on the date the visa number becomes available, but the immigrant petition was pending for 4 years for approval by the USCIS, the alien child’s age is reduced by 4 years, and thus the child is only 18 years old, and would be considered to be under the age of 21 years at the time of visa number availability. CSPA also provides that if the alien is determined to be 21 years of age or older at the time the visa number becomes available, notwithstanding the age-out protection extended under this section, his or her petition will automatically be converted to the appropriate category, which is typically the family second preference (2B) category for sons or daughters of permanent residents. The son or daughter will retain the priority date associated with the original petition.
Children of Asylum and Refugee Applicants CSPA also extends age-out protection to the children of asylum applicants, to provide that an unmarried alien who seeks to accompany or follow to join a parent granted asylum, and who was under 21 years of age on the date the parent applied for asylum but turned 21 during the pendency of the application, will continue to be classified as a child for purposes of derivative asylum benefits. CSPA extends this same protection to the children of aliens granted refugee status.
Petitions for Sons and Daughters of Naturalized Citizens CSPA provides that the family-sponsored (2B) petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized US citizen will be converted to a first preference petition for an unmarried son or daughter of a US citizen, unless the son or daughter elect otherwise. Regardless of whether the petition is converted, the son or daughter may retain the priority date on the original petition. A son or daughter would want to make such an election if the family first preference (adult sons and daughters of US citizens) for his or her country is more backlogged than the 2B preference.
Effectiveness of Petitions/Applications CSPA provides that nothing in the new law may be construed to limit or deny benefits provided for battered immigrant children. The new law also provides that the age-out relief extended under the legislation took effect upon enactment and applies to: (1) immigrant petitions that have been approved but where no determination has yet been made on the beneficiary’s application for an immigrant visa or adjustment of status; (2) immigrant petitions pending before or after the enactment date; and (3) applications pending before the Department of Justice or Department of State on or after the enactment date.
The children who turned 21, and moved from the immediate relative to the first preference category, may now be able to apply for permanent residence as if they are still under 21. Similarly, an individual in the 2B category can determine if he or she was below 21 at the time the visa became available under 2A, and the child could apply for permanent residence as if her or she is still under 21. But in the case of a derivative child who turned 21 when the parent become a legal permanent resident, CSPA may not provide much help since the petition is not pending and had been adjudicated already. But if the parent is yet to apply for permanent residence or immigrant visa, the 21 and above old child would be able to get permanent residency when the parent obtains it, as if he/she is under 21, and thus seeking derivative status.
Children Over 21 may immigrate with parents in Certain Categories under the New Child Status Protection Act (CSPA) Passed by Congress Compiled by Lal Varghese, Attorney at Law, Dallas
“The Child Status Protection Act” (CSPA) had been passed by the US Congress to address the problem of minor children losing their eligibility for certain immigration benefits as a result of USCIS or consular delays in processing the petition or application for immigrant visas. The CSPA protects the immediate relative child of a US citizen parent, children of permanent residents as well as children of asylum and refugee applicants. Prior to the enactment of CSPA, the child’s age was determined at the time of adjudicating the grant of permanent residence or the issuance of immigrant visa. The CSPA introduces earlier points of time when the child’s age is determined, after which it does not matter if the child crosses 21.
Children of US Citizens CSPA extends benefits to children of US citizens in the immediate relative (IR) category (minor children under 21 of US citizens) under three specific situations: 1. The child’s age will be determined on the date on which the immigrant petition for Alien Relative is filed, as opposed to when the application is adjudicated for permanent residence or the visa is issued by the consular officer.2. In the case of a child sponsored under the family-based second preference (2A) (unmarried minor children under 21 of permanent residents), which subsequently is converted to an immediate relative petition based upon the parent’s naturalization, the child’s eligibility for immediate relative status will be determined based upon the date of his or her parent’s naturalization. 3. If the US citizen parent filed a petition for a married son or daughter (under the third preference for married sons and daughters of US citizens) and such son or daughter later divorces, resulting in the original third preference petition later being converted to an immediate relative petition, the child’s eligibility for immediate relative status will be determined based upon his or her age on the date of the divorce. This provision would only be applicable in the case of a married son or daughter who divorces before the age of 21.
Children of Permanent Residents CSPA also extends “age-out” protection to the children of lawful permanent residents. This includes children who have been directly sponsored by their parents or who are accompanying or following to join family-sponsored, employment-based, and diversity immigrants. The age of the alien child is determined on the date on which an immigrant visa number becomes available, reduced by the number of days the petition was “pending.” This provision triggers only if the alien child has sought to acquire permanent residence within one year of such availability. For instance, if the alien child is 22 years old on the date the visa number becomes available, but the immigrant petition was pending for 4 years for approval by the USCIS, the alien child’s age is reduced by 4 years, and thus the child is only 18 years old, and would be considered to be under the age of 21 years at the time of visa number availability. CSPA also provides that if the alien is determined to be 21 years of age or older at the time the visa number becomes available, notwithstanding the age-out protection extended under this section, his or her petition will automatically be converted to the appropriate category, which is typically the family second preference (2B) category for sons or daughters of permanent residents. The son or daughter will retain the priority date associated with the original petition.
Children of Asylum and Refugee Applicants CSPA also extends age-out protection to the children of asylum applicants, to provide that an unmarried alien who seeks to accompany or follow to join a parent granted asylum, and who was under 21 years of age on the date the parent applied for asylum but turned 21 during the pendency of the application, will continue to be classified as a child for purposes of derivative asylum benefits. CSPA extends this same protection to the children of aliens granted refugee status.
Petitions for Sons and Daughters of Naturalized Citizens CSPA provides that the family-sponsored (2B) petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized US citizen will be converted to a first preference petition for an unmarried son or daughter of a US citizen, unless the son or daughter elect otherwise. Regardless of whether the petition is converted, the son or daughter may retain the priority date on the original petition. A son or daughter would want to make such an election if the family first preference (adult sons and daughters of US citizens) for his or her country is more backlogged than the 2B preference.
Effectiveness of Petitions/Applications CSPA provides that nothing in the new law may be construed to limit or deny benefits provided for battered immigrant children. The new law also provides that the age-out relief extended under the legislation took effect upon enactment and applies to: (1) immigrant petitions that have been approved but where no determination has yet been made on the beneficiary’s application for an immigrant visa or adjustment of status; (2) immigrant petitions pending before or after the enactment date; and (3) applications pending before the Department of Justice or Department of State on or after the enactment date.
The children who turned 21, and moved from the immediate relative to the first preference category, may now be able to apply for permanent residence as if they are still under 21. Similarly, an individual in the 2B category can determine if he or she was below 21 at the time the visa became available under 2A, and the child could apply for permanent residence as if her or she is still under 21. But in the case of a derivative child who turned 21 when the parent become a legal permanent resident, CSPA may not provide much help since the petition is not pending and had been adjudicated already. But if the parent is yet to apply for permanent residence or immigrant visa, the 21 and above old child would be able to get permanent residency when the parent obtains it, as if he/she is under 21, and thus seeking derivative status.
REGULAR REGISTERED NURSE (RN) POSITIONS ARE NOT ELIGIBLE FOR H-1B VISAS
Compiled by Lal Varghese, Attorney at Law, Dallas
A recent memorandum by the Executive Associate Commissioner for USCIS giving some guidance on adjudication of H-1b petitions on behalf of Nurses has been misinterpreted and has given wide publicity in Asian community news media. The purpose of the memorandum was to provide the USCIS field offices, which adjudicate H-1b petitions when the beneficiary is a Registered Nurse (RN). The memorandum only clarifies a more than ten-year old law that allows non-immigrant visas under the category H-1b. The memorandum never gives any additional authority for the USCIS offices to adjudicate H-1b petitions when the beneficiary is a Registered Nurse (RN). The memorandum in its first paragraph clearly says that while typical RNs generally do not meet the requirements for H-1b classification, RNs in certain specialized nurse occupations are more likely than typical RNs to be eligible for H-1b status.
USCIS will approve an H-1b nonimmigrant worker petition filed on behalf of a foreign nurse if the statutory and regulatory requirements for H-1b classification are met. An individual is eligible for H-1b nonimmigrant classification if the alien is to be employed in a Specialty Occupation. The Immigration and Nationality Act (INA) defines Specialty Occupation as “an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Regular or entry level RN position does not require the theoretical and practical application of a body of highly specialized knowledge and a US bachelor degree or its foreign equivalent degree as a minimum qualification, hence it is not a Specialty Occupation, and hence RNs are not eligible for H-1b nonimmigrant visas. Again under the INA the Specialty Occupation is requirement is met by “(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation, (B) completion of the degree described in above for the occupation, or (C)(i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.”
In order to be licensed as an RN, an individual must possess diploma in nursing from an approved nursing institute and pass the National Council Licensure Examination for Registered Nurses (NCLEX-RN) examination. Since the minimum requirement for entry in to the field of nursing as a registered nurse is a two-year associate degree in nursing (A. D. N) from any U. S institutions or foreign diploma in nursing from approved institutions outside U. S., and the license from the states where the alien is working as a nurse. Thus it is clear that a typical RN position is not likely being eligible for H-1b classification. Accordingly, the memorandum clearly says an RN positions do not generally require a bachelor’s degree or higher degree for entry level position.
In order to qualify an RN position as H-1b Specialty Occupation, the employer must meet the existing regulatory requirements by showing that: (1) a bachelor’s or higher degree (or its equivalent) is normally the minimum requirement for entry level into the position; (2) the degree requirement is common to the industry for parallel nursing positions (i.e., employers in the same industry require their employees to hold the degree when they are employed in the same or a similar position); (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the position’s duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree (or its equivalent). In determining degree equivalencies, the USCIS uses a formula that requires the beneficiary to have three years of specialized training and/or work experience for each year of college level education that the beneficiary is lacking. Accordingly, an RN will be eligible for H-1b classification only if the employer can demonstrate that the RN position and the alien meet the regulatory requirements for establishing that the position is H-1b as mentioned above.
But, the memorandum says, in contrast to most RN positions, certain specialized nursing occupations like Advanced Practice Registered Nurses (APRN) are likely to require a bachelor’s degree or higher degree, and accordingly, be qualified as H-1b Specialty Occupation. If the RN position requires that the employees should have advanced practice certification in any of the following areas namely: Clinical Nurse Specialist (CNS), Certified Registered Nurse Anesthetist (CRNA), Nurse Practitioner (NP), Certified Nurse Midwife (CNM), or Certified Nurse Practitioner (APRN), and if the APRN position also requires that the employee be certified in that practice, then the nurse will be required to possess an RN license, at least a bachelor degree in nursing (BSN or its equivalent like B. Sc in nursing), and some additional graduate level education, such positions are qualified as Specialty Occupation and hence eligible for H-1 classification.
Nurses in administrative positions, such as upper level “Nurse Manager”, or nurses in educational positions such as Nurse Educator may qualify as Specialty Occupation, since the minimum entry level qualification to such positions are U. S bachelor degree or its equivalent. The memo clearly says, a general RN position does not qualify as a Specialty Occupation, and hence not for H-1b classification. According to the National Council on State Boards of Nurses (NCSBN) has confirmed that the state of North Dakota is the only state in U. S that requires that an individual possess a bachelor degree in nursing (BSN) in order to be licensed as an RN in that state. Thus a position as an RN in the state of North Dakota will generally qualify as a Specialty Occupation and hence for H-1b qualification, according to the memorandum. The memorandum says, each petition must be adjudicated on a case by case basis and a decision to approve or deny the petition must take into account the totality of the requirements for the position, namely educational requirements, additional training in the specialty, and the experience, and the individual’s qualifications for the position. To sum up, an RN position does not meet the requirements of Specialty Occupation in order to classify as an H-1b occupation. But there are certain advanced RN positions in specialty areas that require additional certifications, and minimum bachelor’s degree or its equivalent as minimum qualification, which may qualify as Specialty Occupation, and thereby for H-1b qualification. In North Dakota state only, an RN position qualify as a Specialty Occupation, and hence for H-1b classification.
Compiled by Lal Varghese, Attorney at Law, Dallas
A recent memorandum by the Executive Associate Commissioner for USCIS giving some guidance on adjudication of H-1b petitions on behalf of Nurses has been misinterpreted and has given wide publicity in Asian community news media. The purpose of the memorandum was to provide the USCIS field offices, which adjudicate H-1b petitions when the beneficiary is a Registered Nurse (RN). The memorandum only clarifies a more than ten-year old law that allows non-immigrant visas under the category H-1b. The memorandum never gives any additional authority for the USCIS offices to adjudicate H-1b petitions when the beneficiary is a Registered Nurse (RN). The memorandum in its first paragraph clearly says that while typical RNs generally do not meet the requirements for H-1b classification, RNs in certain specialized nurse occupations are more likely than typical RNs to be eligible for H-1b status.
USCIS will approve an H-1b nonimmigrant worker petition filed on behalf of a foreign nurse if the statutory and regulatory requirements for H-1b classification are met. An individual is eligible for H-1b nonimmigrant classification if the alien is to be employed in a Specialty Occupation. The Immigration and Nationality Act (INA) defines Specialty Occupation as “an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Regular or entry level RN position does not require the theoretical and practical application of a body of highly specialized knowledge and a US bachelor degree or its foreign equivalent degree as a minimum qualification, hence it is not a Specialty Occupation, and hence RNs are not eligible for H-1b nonimmigrant visas. Again under the INA the Specialty Occupation is requirement is met by “(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation, (B) completion of the degree described in above for the occupation, or (C)(i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.”
In order to be licensed as an RN, an individual must possess diploma in nursing from an approved nursing institute and pass the National Council Licensure Examination for Registered Nurses (NCLEX-RN) examination. Since the minimum requirement for entry in to the field of nursing as a registered nurse is a two-year associate degree in nursing (A. D. N) from any U. S institutions or foreign diploma in nursing from approved institutions outside U. S., and the license from the states where the alien is working as a nurse. Thus it is clear that a typical RN position is not likely being eligible for H-1b classification. Accordingly, the memorandum clearly says an RN positions do not generally require a bachelor’s degree or higher degree for entry level position.
In order to qualify an RN position as H-1b Specialty Occupation, the employer must meet the existing regulatory requirements by showing that: (1) a bachelor’s or higher degree (or its equivalent) is normally the minimum requirement for entry level into the position; (2) the degree requirement is common to the industry for parallel nursing positions (i.e., employers in the same industry require their employees to hold the degree when they are employed in the same or a similar position); (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the position’s duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree (or its equivalent). In determining degree equivalencies, the USCIS uses a formula that requires the beneficiary to have three years of specialized training and/or work experience for each year of college level education that the beneficiary is lacking. Accordingly, an RN will be eligible for H-1b classification only if the employer can demonstrate that the RN position and the alien meet the regulatory requirements for establishing that the position is H-1b as mentioned above.
But, the memorandum says, in contrast to most RN positions, certain specialized nursing occupations like Advanced Practice Registered Nurses (APRN) are likely to require a bachelor’s degree or higher degree, and accordingly, be qualified as H-1b Specialty Occupation. If the RN position requires that the employees should have advanced practice certification in any of the following areas namely: Clinical Nurse Specialist (CNS), Certified Registered Nurse Anesthetist (CRNA), Nurse Practitioner (NP), Certified Nurse Midwife (CNM), or Certified Nurse Practitioner (APRN), and if the APRN position also requires that the employee be certified in that practice, then the nurse will be required to possess an RN license, at least a bachelor degree in nursing (BSN or its equivalent like B. Sc in nursing), and some additional graduate level education, such positions are qualified as Specialty Occupation and hence eligible for H-1 classification.
Nurses in administrative positions, such as upper level “Nurse Manager”, or nurses in educational positions such as Nurse Educator may qualify as Specialty Occupation, since the minimum entry level qualification to such positions are U. S bachelor degree or its equivalent. The memo clearly says, a general RN position does not qualify as a Specialty Occupation, and hence not for H-1b classification. According to the National Council on State Boards of Nurses (NCSBN) has confirmed that the state of North Dakota is the only state in U. S that requires that an individual possess a bachelor degree in nursing (BSN) in order to be licensed as an RN in that state. Thus a position as an RN in the state of North Dakota will generally qualify as a Specialty Occupation and hence for H-1b qualification, according to the memorandum. The memorandum says, each petition must be adjudicated on a case by case basis and a decision to approve or deny the petition must take into account the totality of the requirements for the position, namely educational requirements, additional training in the specialty, and the experience, and the individual’s qualifications for the position. To sum up, an RN position does not meet the requirements of Specialty Occupation in order to classify as an H-1b occupation. But there are certain advanced RN positions in specialty areas that require additional certifications, and minimum bachelor’s degree or its equivalent as minimum qualification, which may qualify as Specialty Occupation, and thereby for H-1b qualification. In North Dakota state only, an RN position qualify as a Specialty Occupation, and hence for H-1b classification.
Removing the Conditions on Permanent Residence Based on Marriage to US Citizens
A lawful permanent resident is given the privilege of living and working in the United States permanently. Your permanent residence status will be conditional if it is based on a marriage that was less than two years old on the day you were given permanent residence. You are given conditional resident status on the day you are lawfully admitted to the United States on an immigrant visa or receive adjustment of status. Your permanent resident status is conditional, because you must prove that you did not get married to evade the immigration laws of the United States.
You and your spouse must apply together to remove the conditions on your residence. You should apply during the 90 days before your second anniversary as a conditional resident. The expiration date on your alien registration card (commonly know as green card) is also the date of your second anniversary as a conditional resident. If you do not apply to remove the conditions in time, you could lose your conditional resident status and be removed from the country.
If you are no longer married to your spouse, or if you have been battered or abused by your spouse, you can apply to waive the joint filing requirement. In such cases, you may apply to remove the conditions on your permanent residence any time after you become a conditional resident, but before you are removed from the country by a final order of the immigration Judge.
If your child received conditional resident status within 90 days of when you did, then your child may be included in your application to remove the conditions on permanent residence. Your child must file a separate application if your child received conditional resident status more than 90 days after you did.
You may apply to remove your conditions on permanent residence if:
You are still married to the same U.S. citizen or lawful permanent resident after two years (your children may be included in your application if they got their conditional resident status at the same time that you did or within 90 days).
You are a child and cannot be included in the application of your parents for a valid reason.
You are a widow or widower of a marriage that was entered into in good faith.
You entered into a marriage in good faith, but the marriage was ended through divorce or annulment.
You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S. citizen or lawful permanent resident spouse. The termination of your conditional resident status would cause extreme hardship to you.
If you fail to properly file the Petition to Remove the Conditions on Residence within the 90-day period before your second anniversary as a conditional resident, your conditional resident status will automatically be terminated and the Service will order removal proceedings against you. You will receive a notice from the Service telling you that you have failed to remove the conditions, and you will also receive a Notice to Appear at a hearing. At the hearing you may review and rebut the evidence against you. You are responsible for proving that you complied with the requirements.
The Petition can be filed after the 90-day period if you can prove in writing to the director of the Service Center that there was extenuating circumstances which prevented you from filing a petition in time and such other good cause for failing to file the petition on time. The director has the discretion to approve the petition and restore your permanent resident status. If you are unable to apply with your spouse to remove the conditions on your residence, you may request a waiver of the joint filing requirement. You may request consideration of more than one waiver provision at a time. You may request a waiver of the joint petitioning requirements if:
_ Your deportation or removal would result in extreme hardship
_ You entered into your marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and you were not at fault in failing to file a timely petition.
_ You entered into your marriage in good faith, and not to evade immigration laws, but during the marriage you were battered by, or subjected to extreme cruelty committed by your U.S. citizen of legal permanent resident spouse, and you were not at fault in failing to file a joint petition.
In some cases, the service centers refer to local offices to conduct an in person interview to verify the genuineness of the marriage and review other documentary evidence to substantiate the claim for relief. Under the new rules in all applications/petitions filed with the USCIS, a biometric appointment will be scheduled to take the ten finger print and capture your picture digitally and to store the same in the data base of the USCIS.
A lawful permanent resident is given the privilege of living and working in the United States permanently. Your permanent residence status will be conditional if it is based on a marriage that was less than two years old on the day you were given permanent residence. You are given conditional resident status on the day you are lawfully admitted to the United States on an immigrant visa or receive adjustment of status. Your permanent resident status is conditional, because you must prove that you did not get married to evade the immigration laws of the United States.
You and your spouse must apply together to remove the conditions on your residence. You should apply during the 90 days before your second anniversary as a conditional resident. The expiration date on your alien registration card (commonly know as green card) is also the date of your second anniversary as a conditional resident. If you do not apply to remove the conditions in time, you could lose your conditional resident status and be removed from the country.
If you are no longer married to your spouse, or if you have been battered or abused by your spouse, you can apply to waive the joint filing requirement. In such cases, you may apply to remove the conditions on your permanent residence any time after you become a conditional resident, but before you are removed from the country by a final order of the immigration Judge.
If your child received conditional resident status within 90 days of when you did, then your child may be included in your application to remove the conditions on permanent residence. Your child must file a separate application if your child received conditional resident status more than 90 days after you did.
You may apply to remove your conditions on permanent residence if:
You are still married to the same U.S. citizen or lawful permanent resident after two years (your children may be included in your application if they got their conditional resident status at the same time that you did or within 90 days).
You are a child and cannot be included in the application of your parents for a valid reason.
You are a widow or widower of a marriage that was entered into in good faith.
You entered into a marriage in good faith, but the marriage was ended through divorce or annulment.
You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S. citizen or lawful permanent resident spouse. The termination of your conditional resident status would cause extreme hardship to you.
If you fail to properly file the Petition to Remove the Conditions on Residence within the 90-day period before your second anniversary as a conditional resident, your conditional resident status will automatically be terminated and the Service will order removal proceedings against you. You will receive a notice from the Service telling you that you have failed to remove the conditions, and you will also receive a Notice to Appear at a hearing. At the hearing you may review and rebut the evidence against you. You are responsible for proving that you complied with the requirements.
The Petition can be filed after the 90-day period if you can prove in writing to the director of the Service Center that there was extenuating circumstances which prevented you from filing a petition in time and such other good cause for failing to file the petition on time. The director has the discretion to approve the petition and restore your permanent resident status. If you are unable to apply with your spouse to remove the conditions on your residence, you may request a waiver of the joint filing requirement. You may request consideration of more than one waiver provision at a time. You may request a waiver of the joint petitioning requirements if:
_ Your deportation or removal would result in extreme hardship
_ You entered into your marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and you were not at fault in failing to file a timely petition.
_ You entered into your marriage in good faith, and not to evade immigration laws, but during the marriage you were battered by, or subjected to extreme cruelty committed by your U.S. citizen of legal permanent resident spouse, and you were not at fault in failing to file a joint petition.
In some cases, the service centers refer to local offices to conduct an in person interview to verify the genuineness of the marriage and review other documentary evidence to substantiate the claim for relief. Under the new rules in all applications/petitions filed with the USCIS, a biometric appointment will be scheduled to take the ten finger print and capture your picture digitally and to store the same in the data base of the USCIS.
HOW LONG A GREEN CARD HOLDER CAN STAY OUTSIDE USA AND STILL MAINTAIN PERMANENT RESIDENT STATUS TO BE ELIGIBLE TO APPLY FOR NATURALIZATION
Lal Varghese, Attorney at Law, Dallas
The law (IIRAIRA) enacted by the Congress in 1996, and became effective from 09/30/1996 does not change the underlying rules regarding the maintenance of Lawful Permanent Resident Status (hereinafter LPR), but the Green Card holders should aware that new procedures at the airports when returning to the US, and new sensitivity to issues of maintenance of LPR status on the part the US CIS (formerly INS) inspectors at the port of entry may questioning of LPRs arriving from abroad much more probing than in the past, and make it crucial for the LPRs to maintain their status in USA. Many LPRs believe that as long as they return to the US every year (commonly known as coming for renewing Green Cards) they can maintain their status as LPR without the risk of loosing the same. Another group of LPRs think that they can maintain their LPR status as long as they pay their taxes in the US as ‘residents’, do not break any laws in the US, and spend some minimal time each year in the US, they will not loose their status. Both these groups of LPRs are absolutely wrong. Strictly speaking an LPR cannot stay outside the US for extended period of time, since an LPR is expected to stay permanently in America. Hence retaining once LPR status is not quite simple, particularly for those LPRs who are staying extending period of time outside the United States for many reasons. The passage of new immigration law on 09/30/1996, and its implementation by the inspectors at the airports adds new wrinkles, which must be taken seriously by all LPRS staying outside the US for extended period of time. The general rules regarding entry into the United States by persons previously granted LPR status are as follows:
1. Every alien, including an alien previously admitted for LPR status is subject to inspection by US CIS inspectors at the port of entry when arriving in the US;
2. Every arriving alien who is attempting to “enter” the US is subject to possible exclusion under the new law (IIRAIRA);
3. An arriving alien who was previously granted status as an LPR is not attempting to “enter” the US if returning from a trip abroad which was “brief”, casual, and innocent;
4. An LPR whether attempting to “enter” or not is considered as a “special immigrant” or “returning resident” not subject to nay numerical limitation on the number of admissions each if “returning from a temporary visit abroad”;
Only the third rule was modified by the new law (IIRAIRA). The new law provided concrete criteria for the “brief, casual, and innocent” rule concept. Under the new law an LPR is not considered to be “seeking admission” when returning from abroad unless he or she:
1. has abandoned or relinquished that status;
2. has been absent from the United States for a continuous period in excess of 180 days (six months); (this lead to the panic of misconception among the LPRs that they cannot stay more than six months under the new law as opposed to the less than one year rule under the old rule)
3. has engaged in illegal activity after departure from the US;
4. has departed from the US while under legal process seeking his or her removal from the country;
5. has committed certain criminal offenses and has not been granted relief from those offenses; or
6. enters or attempts to enter without inspection by an immigration officer.
It is important to note that an LPR who has been absent for less than 180 days (six months) may still be subject to removal proceedings as an alien “seeking admission”, if US CIS charges that he or she has “abandoned or relinquished” the LPR status. To determine the alien’s intention with respect to whether an absence from the US is “temporary”,
US CIS or immigration judge will examine factors such as location of the alien’s family ties, property holdings, and job; whether the alien has filed tax returns claiming to be a “resident” or “non resident” tax payer, the alien’s purpose in departing from the US; whether the visit abroad could be expected to terminate within a short period of time; and whether the termination date of the visit abroad could be fixed by some early event;
The LPRs pattern of travel is extremely important: if the alien spends significant amounts of time outside the United States over the course of several years, returning only for brief annual visits on round trip tickets both originating in a foreign country, then even possession of US residential property, payment of US taxes and US family ties may be insufficient to over come a finding of abandonment of LPR status. The only alternative is to become a US citizen at the earliest possible opportunity. Any absences of more than six months will automatically makes an alien ineligible for applying for naturalization. If the absence is more than one with a re-entry permit, the alien is eligible to apply for naturalization only after four years and one day after returning to the US. The alien who will be abroad for considerable period of time with a re-entry permit must take certain steps to assure that his/her permanent resident status is not lost. In all cases, the alien should file US tax returns as a resident even if he/she does not have any income in the US, but by including the foreign income. Other important steps to maintain permanent resident status while living outside United States are as follows:
1. The maintenance of a US address, even if it is at the home of friend or relative. It is better to have continued ownership of property in the US;
2. Leaving close family members like spouse and children in the US while staying extended period of time outside by the alien;
3. The alien should leave an open bank account and continue to use the same even outside US, and should keep all monthly statements for future use in case needed;
4. The alien should maintain and operate US credit card accounts and should keep the monthly statements for future use if needed;
5. Maintain and keep a US driver’s license, and filing of joint tax returns with the spouse, and all children showing as dependents; (never file a U. S tax return as non resident alien)
6. Ownership of stocks, bonds and other securities in the joint names spouses;
7. Children studying schools and colleges and keeping their transcripts; and
8. Any other documents or evidence showing strong ties to the US.
Lal Varghese, Attorney at Law, Dallas
The law (IIRAIRA) enacted by the Congress in 1996, and became effective from 09/30/1996 does not change the underlying rules regarding the maintenance of Lawful Permanent Resident Status (hereinafter LPR), but the Green Card holders should aware that new procedures at the airports when returning to the US, and new sensitivity to issues of maintenance of LPR status on the part the US CIS (formerly INS) inspectors at the port of entry may questioning of LPRs arriving from abroad much more probing than in the past, and make it crucial for the LPRs to maintain their status in USA. Many LPRs believe that as long as they return to the US every year (commonly known as coming for renewing Green Cards) they can maintain their status as LPR without the risk of loosing the same. Another group of LPRs think that they can maintain their LPR status as long as they pay their taxes in the US as ‘residents’, do not break any laws in the US, and spend some minimal time each year in the US, they will not loose their status. Both these groups of LPRs are absolutely wrong. Strictly speaking an LPR cannot stay outside the US for extended period of time, since an LPR is expected to stay permanently in America. Hence retaining once LPR status is not quite simple, particularly for those LPRs who are staying extending period of time outside the United States for many reasons. The passage of new immigration law on 09/30/1996, and its implementation by the inspectors at the airports adds new wrinkles, which must be taken seriously by all LPRS staying outside the US for extended period of time. The general rules regarding entry into the United States by persons previously granted LPR status are as follows:
1. Every alien, including an alien previously admitted for LPR status is subject to inspection by US CIS inspectors at the port of entry when arriving in the US;
2. Every arriving alien who is attempting to “enter” the US is subject to possible exclusion under the new law (IIRAIRA);
3. An arriving alien who was previously granted status as an LPR is not attempting to “enter” the US if returning from a trip abroad which was “brief”, casual, and innocent;
4. An LPR whether attempting to “enter” or not is considered as a “special immigrant” or “returning resident” not subject to nay numerical limitation on the number of admissions each if “returning from a temporary visit abroad”;
Only the third rule was modified by the new law (IIRAIRA). The new law provided concrete criteria for the “brief, casual, and innocent” rule concept. Under the new law an LPR is not considered to be “seeking admission” when returning from abroad unless he or she:
1. has abandoned or relinquished that status;
2. has been absent from the United States for a continuous period in excess of 180 days (six months); (this lead to the panic of misconception among the LPRs that they cannot stay more than six months under the new law as opposed to the less than one year rule under the old rule)
3. has engaged in illegal activity after departure from the US;
4. has departed from the US while under legal process seeking his or her removal from the country;
5. has committed certain criminal offenses and has not been granted relief from those offenses; or
6. enters or attempts to enter without inspection by an immigration officer.
It is important to note that an LPR who has been absent for less than 180 days (six months) may still be subject to removal proceedings as an alien “seeking admission”, if US CIS charges that he or she has “abandoned or relinquished” the LPR status. To determine the alien’s intention with respect to whether an absence from the US is “temporary”,
US CIS or immigration judge will examine factors such as location of the alien’s family ties, property holdings, and job; whether the alien has filed tax returns claiming to be a “resident” or “non resident” tax payer, the alien’s purpose in departing from the US; whether the visit abroad could be expected to terminate within a short period of time; and whether the termination date of the visit abroad could be fixed by some early event;
The LPRs pattern of travel is extremely important: if the alien spends significant amounts of time outside the United States over the course of several years, returning only for brief annual visits on round trip tickets both originating in a foreign country, then even possession of US residential property, payment of US taxes and US family ties may be insufficient to over come a finding of abandonment of LPR status. The only alternative is to become a US citizen at the earliest possible opportunity. Any absences of more than six months will automatically makes an alien ineligible for applying for naturalization. If the absence is more than one with a re-entry permit, the alien is eligible to apply for naturalization only after four years and one day after returning to the US. The alien who will be abroad for considerable period of time with a re-entry permit must take certain steps to assure that his/her permanent resident status is not lost. In all cases, the alien should file US tax returns as a resident even if he/she does not have any income in the US, but by including the foreign income. Other important steps to maintain permanent resident status while living outside United States are as follows:
1. The maintenance of a US address, even if it is at the home of friend or relative. It is better to have continued ownership of property in the US;
2. Leaving close family members like spouse and children in the US while staying extended period of time outside by the alien;
3. The alien should leave an open bank account and continue to use the same even outside US, and should keep all monthly statements for future use in case needed;
4. The alien should maintain and operate US credit card accounts and should keep the monthly statements for future use if needed;
5. Maintain and keep a US driver’s license, and filing of joint tax returns with the spouse, and all children showing as dependents; (never file a U. S tax return as non resident alien)
6. Ownership of stocks, bonds and other securities in the joint names spouses;
7. Children studying schools and colleges and keeping their transcripts; and
8. Any other documents or evidence showing strong ties to the US.
U. S Immigration Publishes Final Rule for Religious Worker Visa Classifications from Nov. 26, 2008
Lal Varghese, Attorney at Law, Dallas
The Department of Homeland Security has made substantial revisions to the immigrant (LPR) and nonimmigrant (R-1) religious worker visa classification regulations with effect from Nov. 26, 2008 by publishing the same in the Federal Register. The draft rules were published in the Federal Register in June 2007 for comments from the public and the publication of final rules were delayed for more than one and half year in the Federal Register. The new rules will take effect from the date of publication in the Federal Register which means from Nov. 26, 2008 no more R-1 visas will be issued at any U. S consulates around the world. The Dept. of State has already sent a cable notification to all consulates in this respect informing them not to issue any R-1 visas with immediate effect without an approved petition from USCIS. Under the old rules it takes a couple of days after applying for R-1 visa at a consulate to receive the same. But, under the new rules since a petition has to be filed for each alien worker and a site inspection need to be done before it can be approved, it may take several months even a year to approve a petition under the new rules. This delay may cause severe hardship for many religious organizations which needs the services of priests and religious workers from outside United States immediately.
Under the previous rules, any alien who wants to work as a priest or in a religious occupation, just only need to apply for the R-1 visa directly at the consulate with all supporting documents and evidence. But, under the new rules took effect from each employer, like a Church, who wishes to hire a priest or religious worker from another country must file separate non immigrant visa petitions (for temporary period of employment) and immigrant petitions (permanent employment) for each alien worker with U. S Customs and Immigration Services (USCIS) with the filing fee of $320.00 for non immigrant petitions and $375.00 for immigrant petitions. It is anticipated that it may take about 9-12 months for processing these petitions since a site inspection has to be done in each case to make sure that the employer is a genuine one and the location (like a Church) where the alien is to be employed is genuine or not. This site inspection may take any amount of time under the present circumstances. According to USCIS, this procedure will allow it to verify the eligibility of the petitioner, the alien beneficiary, and the job offer prior to the issuance of a visa or admission to the United States. The employers will be required to submit an attestation verifying the worker’s qualifications, the nature of the job offered, and the legitimacy of the non profit organization filing the petition for hiring alien workers under religious category whether temporary or permanent employment. A non immigrant petition can be filed only just six months prior the expected date of beginning of the work for the religious worker in United States.
The final rule provides additional notification to petitioners that USCIS may conduct onsite inspections of organizations seeking to employ religious workers. These inspections are intended to increase deterrence and detection of fraudulent petitions and to increase the ability of the agency to monitor religious workers and ensure their compliance with the terms of their religious worker classification. According to a statics report submitted by Dept. of State only about 66% of R-1 visa entrants are genuine and entering for genuine entities. Recently, the USCIS has found out from site visits while adjudicating extension of stay petitions filed for alien workers that 24 Pakistanis had entered United States using R-1 visas for non existent entities and is not working for such entities. The new measure according to USCIS is intended to protect the national security of the United States by preventing terrorists entering United States without a petition process and the verification of the entity, alien beneficiary.
Under the new rules, all petitioning organizations must submit a currently valid determination letter from the Internal Revenue Service establishing their tax-exempt status under section 501 ( C ) ( 3 ) of the IRS Code. The new rules allows the period of work and stay for nonimmigrant religious workers only up to 30 months. The previous rules allowed R-1 visa holders to stay and work in United for an initial period of three years and another extension for two years subject to a maximum of five years. The period of stay granted is always based on the petitioner’s need for the alien’s services. The new rules give the USCIS the opportunity to review, at an earlier time, whether the terms of the R-1 visa have been met. Requests for one more extension of an additional 30 months will be considered by filing separate new non immigrant visa petitions with all supporting documents and evidence both for the employer and alien worker and payment of the filing fee of $320.00 for each alien worker. The total period for which an alien can work under R-1 visa remains the same like under the old rules to five years in total.
According to the most recent processing time report published by the California Service Center, it is taking about 7 months under the old rule to process an I-129 R-1 petition filed for extension of stay. Since under the new rules, a mandatory site inspection is required it may take any amount of time between 4-6 months to have a site inspection done by the local office and report is given to the California Service Center due to the back log of cases pending at the local offices for site inspections. According to the statics published by the USCIS during the past three years both the USCIS and DOS received an average of 24, 376 petitions/applications for R-1 visas. It is estimated under the new rules it is estimated that the USCIS will receive about 23,200 petitions in 2009 alone for processing at is California Service Center. This high volume of filings for I-360 and I-129 will cause the delay in processing and the delay in having site inspection done by local offices. It is anticipated that it may take any amount of time between 12-15 months for the approval and to schedule an interview at the consulate including the time taken by to transfer the file to consulate and to schedule an appointment for the alien religious workers and priests.
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