USCIS Provides Interim Relief by Deferred Action for Surviving Spouses of U. S Citizens Married Less Than Two Years
Lal Varghese, Attorney at Law, Dallas
U.S. Department of Homeland Security (DHS) would grant deferred action relief to surviving spouses of U.S. citizens who died before the second anniversary of their marriage. U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for an adverse decision (denial of application) from USCIS would be the death of a U.S. citizen spouse before the second anniversary of their marriage. Until there is a legislative solution to remedy the situation commonly referred to as the “widow penalty,” USCIS will provide interim administrative relief in the form of deferred action to surviving spouses whose U.S. citizen spouses died before the second anniversary of their marriage. The “widow penalty” prevents widow(er)s of deceased U.S. citizens from becoming lawful permanent residents on the basis of the petition filed by their late U. S citizen spouses or from later self-petitioning to change their status if the U.S. citizen dies before the second anniversary of their marriage.
Under this new administrative guidelines, surviving spouses, whose U.S. citizen spouses died before the second anniversary of their marriage, qualifies for deferred action if they: were married to, but not legally separated or divorced from their U.S. citizen spouse at the time of that spouse’s death; did not remarry again; and are currently residing in the United States, regardless of whether the U.S. citizen spouse filed a Form I-130 petition for the foreign spouse before his or her death. Additionally, deferred action under this program is also available to the qualifying children of the surviving spouse who are younger than age 21 (at the time the request for deferred action is submitted or a Form I-130 was filed on their behalf as an immediate relative); currently residing in the United States; and unmarried.
Deferred action is an exercise of prosecutorial discretion not to pursue removal proceedings of a particular alien for a particular period. Deferred action is not intended to be a permanent remedy to the “widow penalty,” rather it is a temporary discretionary solution to an issue that is subject to ongoing legislative and judicial actions. The grant of deferred action by USCIS does not confer or alter any immigration status. Deferred action does not eliminate any periods of unlawful presence that accrued before it was granted; however, no additional unlawful presence accrues during the time that the deferred action is in effect. The grant of deferred action does not convey or imply any waivers of inadmissibility that may exist, regardless of whether that inadmissibility is known to USCIS at the time of the request for deferred action. Likewise, deferred action cannot be used to establish eligibility for any immigration benefit that requires maintenance of lawful status.
In order to claim the relief of deferred action, applicants must file Form I-360 with fee with the Vermont Service Center. Applicants are not eligible for deferred action if the alien is the: Surviving spouse of a deceased U.S. citizen, or qualifying child who is residing outside the United States; Surviving spouse or child of a lawful permanent resident alien or other non-U.S. citizen; Surviving spouse of a deceased U.S. citizen or qualifying child if the surviving spouse remarried at any time after the U.S. citizen’s death (regardless of whether or not the subsequent marriage has been terminated); Surviving spouse who was legally separated or divorced from his or her U.S. citizen spouse at the time of the citizen’s death (or the surviving spouse’s child); U.S. born child of either the surviving spouse or the deceased U.S. citizen spouse or such beneficiary’s children; or Deceased U.S. spouse’s child who previously derived U.S. citizenship.
A grant of deferred action is a discretionary action on the part of USCIS. In addition to basic eligibility criteria as described above, USCIS will consider whether any serious adverse factors exist, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety reasons. In addition, applicants whose visa petition was denied or revoked for any reason other than or in addition to the death of the petitioning U.S. citizen spouse are not eligible for deferred action under this program. Denial of a deferred action request may not be appealed.
The validity period of deferred action granted based on this program is two years. Once granted deferred action, the applicant will receive a grant letter indicating the duration of validity, specifics regarding the program, and ability to request employment authorization. Surviving alien spouses of U.S. citizens who died before the second anniversary of their marriage and the children of those surviving alien spouses who have been granted deferred action relief under this program are eligible to apply for an Employment Authorization Document (EAD) by completing Form I-765 with appropriate fees. The validity period is two years, not to exceed the expiration date of the grant of deferred action. Applicants may submit a Form I-765, with the appropriate filing fee, using this category if applicants wish to seek employment authorization under this program; however, they must demonstrate an economic necessity.
Federal regulations require that the approval of Form I-130, Petition for Alien Relative, be automatically revoked upon the death of the petitioner if the beneficiary has not already adjusted status in the United States or been inspected and admitted as an immigrant. Thus, once USCIS receives notice of the death of the U.S. citizen petitioner the approved I-130 petition is automatically revoked. However, the beneficiary may request humanitarian reinstatement of the revoked petition. USCIS may then exercise discretion and grant the reinstatement after considering the facts and humanitarian considerations of the particular case. If the request for humanitarian reinstatement request is approved, then the beneficiary may proceed to the adjustment of status or consular processing stage. Since an avenue for permanent resident status already exists for this group, the beneficiary is not eligible to seek deferred action under this program. While each case will be considered individually on its merits, USCIS generally will give favorable consideration to requests for humanitarian reinstatement made by eligible widow(er)s. If the request for humanitarian reinstatement is denied, the beneficiary may file for deferred action status by submitting a completed Form I-360 with the Vermont Service Center of the USCIS.
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.
Tuesday, September 15, 2009
Friday, August 21, 2009
‘Global Entry’, Trusted Traveler Program, Faster, Easier Entry into the U.S. for Pre-Approved Travelers
‘Global Entry’, Trusted Traveler Program, Faster, Easier Entry into the U.S. for Pre-Approved Travelers
Lal Varghese, Attorney at Law, Dallas
Now there’s a faster, easier way for pre-approved travelers to enter the United States. The Global Entry Trusted Traveler Program, created and administered by U.S. Customs and Border Protection (CBP), is designed for frequent international travelers. Entirely voluntary, participation in the program can expedite entry into the U.S. at designated airports across the country. Global Entry is a new, risk-based approach to facilitate the entry of pre-approved U.S. citizens, U.S. nationals, lawful permanent residents of the U.S. and citizens of other certain countries. The pilot allows frequent international travelers who have passed a background check, use of an automated kiosk to clear passport control, and provides an expedited exit lane out of the CBP processing area. Global Entry is a traveler’s ticket to get out of line.
New U. S Passport Office in Dallas opened on July 13, 2009
New U. S Passport Office in Dallas opened on July 13, 2009
Furnished by Lal Varghese, Attorney at Law, Dallas
The Department of State plans to expand the existing network of 21 passport agencies and centers nationwide by opening new passport agencies in the State of Vermont, in the cities of Buffalo, New York, El Paso, Texas, Atlanta, Georgia and San Diego, California, and by establishing public counters at two existing locations, the National Passport Center in Portsmouth, New Hampshire, and the Arkansas Passport Center in Hot Springs, Arkansas. This expansion will be undertaken utilizing funds appropriated by the American Recovery and Reinvestment Act of 2009.
These new agencies will be open to the public and will provide the citizens of these communities with easy access to the full range of passport services. These agencies will have the capability to issue passports onsite and provide same-day service to qualified applicants. The Department is working with the General Services Administration to identify appropriate space in each of the locations and the Department will provide updates to the public through the Department’s Recovery Act website as project schedules are finalized. In March, the Department opened a new passport agency in Detroit and another new passport agency in Minneapolis in May. The Western Passport Center, a mega adjudication center with a public counter, will be co-located with the existing passport printing facility in Tucson. These activities were funded through the Department’s normal budget and appropriations process.
The U.S. Department of State opened its twenty-second domestic passport issuance facility in Dallas, Texas on July 13, 2009. The Dallas Passport Agency is located at 1100 Commerce Street (Federal Building) in downtown Dallas and is designed to join the Houston Passport Agency in providing in-person passport services to American citizens throughout the southwest border region. The Dallas location provides access to a major domestic and international airport and will be instrumental in helping American citizens with their travel plans. The Dallas Passport Agency serves U.S. citizens who have urgent/emergency travel needs and has the capability to issue passport books on-site to qualifying applicants. Dallas will have the means to issue the U.S. passport card onsite in the near future. With the final phase of the Western Hemisphere Travel Initiative that was implemented in June, this agency will greatly improve our ability to meet the travel needs of our customers in several states along our southern border. Information on the cost and how to apply for a passport book and/or a passport card is available at travel.state.gov. U.S. citizens may also obtain passport information by phone by calling the National Passport Information Center toll-free at 1-877-487-2778.
THE U.S. PASSPORT CARD IS NOW IN PRODUCTION
The U. S Passport Agency began issuing of the U.S. Passport Card on July 14, 2008. Till now, they have issued over 1,000,000 U.S. Passport Cards. Applications for the U.S. Passport Card are being processed in approximately 4-6 weeks from the time of application. The wallet-size passport card is convenient and less expensive than the passport book. However, the U.S. Passport Card cannot be used for international air travel. This new travel document can be used to enter the United States from Canada, Mexico, the Caribbean, and Bermuda at land border crossings or sea ports-of-entry. This card also can be used as a second ID in addition to the driver’s license or picture ID, whenever such second ID is needed. It is always a smart idea to carry U. S Passport Card with you so that you can prove your legal status at any time it is needed under the new stringent laws being implemented in United States.
A current or previous passport book holder, who is eligible to use Form DS-82 , may apply for a passport card as a renewal by mail. First time applicants for a U.S. Passport, and those not eligible to use Form DS-82, must apply for a passport card in person using Form DS-11. The card has the same period of validity as the U.S. Passport Book: 10 years for an adult and 5 years for minors under age 16. The card costs $45 for a first-time adult passport applicant and $35 for all minor applicants under age 16, regardless of whether they are previous passport book or cardholders. Adults who already have a fully valid passport book may apply for the card as a passport renewal by mail and pay only $20.
To facilitate the frequent travel of U.S. citizens living in border communities and to meet DHS's operational needs at land borders, the passport card contains a vicinity-read radio frequency identification (RFID) chip. This chip points to a stored record in secure government databases. There is no personal information written to the RFID chip itself. With RFID technology, Customs and Border Protection inspectors will be able to access photographs and other biographical information stored in secure government databases before the traveler reaches the inspection station. The passport card uses state-of-the-art security features to prevent against the possibility of counterfeiting and forgery. In addition, a protective sleeve is provided with each passport card to protect against unauthorized reading or tracking of the card when it is not in use.
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.
Tuesday, July 28, 2009
New U. S. Passport Office in Dallas
New U. S Passport Office in Dallas opened on July 13, 2009
Furnished by Lal Varghese, Attorney at Law, Dallas
The Department of State plans to expand the existing network of 21 passport agencies and centers nationwide by opening new passport agencies in the State of Vermont, in the cities of Buffalo, New York, El Paso, Texas, Atlanta, Georgia and San Diego, California, and by establishing public counters at two existing locations, the National Passport Center in Portsmouth, New Hampshire, and the Arkansas Passport Center in Hot Springs, Arkansas. This expansion will be undertaken utilizing funds appropriated by the American Recovery and Reinvestment Act of 2009.
These new agencies will be open to the public and will provide the citizens of these communities with easy access to the full range of passport services. These agencies will have the capability to issue passports onsite and provide same-day service to qualified applicants. The Department is working with the General Services Administration to identify appropriate space in each of the locations and the Department will provide updates to the public through the Department’s Recovery Act website as project schedules are finalized. In March, the Department opened a new passport agency in Detroit and another new passport agency in Minneapolis in May. The Western Passport Center, a mega adjudication center with a public counter, will be co-located with the existing passport printing facility in Tucson. These activities were funded through the Department’s normal budget and appropriations process.
The U.S. Department of State opened its twenty-second domestic passport issuance facility in Dallas, Texas on July 13, 2009. The Dallas Passport Agency is located at 1100 Commerce Street (Federal Building) in downtown Dallas and is designed to join the Houston Passport Agency in providing in-person passport services to American citizens throughout the southwest border region. The Dallas location provides access to a major domestic and international airport and will be instrumental in helping American citizens with their travel plans. The Dallas Passport Agency serves U.S. citizens who have urgent/emergency travel needs and has the capability to issue passport books on-site to qualifying applicants. Dallas will have the means to issue the U.S. passport card onsite in the near future. With the final phase of the Western Hemisphere Travel Initiative that was implemented in June, this agency will greatly improve our ability to meet the travel needs of our customers in several states along our southern border. Information on the cost and how to apply for a passport book and/or a passport card is available at travel.state.gov. U.S. citizens may also obtain passport information by phone by calling the National Passport Information Center toll-free at 1-877-487-2778.
THE U.S. PASSPORT CARD IS NOW IN PRODUCTION
Furnished by Lal Varghese, Attorney at Law, Dallas
The Department of State plans to expand the existing network of 21 passport agencies and centers nationwide by opening new passport agencies in the State of Vermont, in the cities of Buffalo, New York, El Paso, Texas, Atlanta, Georgia and San Diego, California, and by establishing public counters at two existing locations, the National Passport Center in Portsmouth, New Hampshire, and the Arkansas Passport Center in Hot Springs, Arkansas. This expansion will be undertaken utilizing funds appropriated by the American Recovery and Reinvestment Act of 2009.
These new agencies will be open to the public and will provide the citizens of these communities with easy access to the full range of passport services. These agencies will have the capability to issue passports onsite and provide same-day service to qualified applicants. The Department is working with the General Services Administration to identify appropriate space in each of the locations and the Department will provide updates to the public through the Department’s Recovery Act website as project schedules are finalized. In March, the Department opened a new passport agency in Detroit and another new passport agency in Minneapolis in May. The Western Passport Center, a mega adjudication center with a public counter, will be co-located with the existing passport printing facility in Tucson. These activities were funded through the Department’s normal budget and appropriations process.
The U.S. Department of State opened its twenty-second domestic passport issuance facility in Dallas, Texas on July 13, 2009. The Dallas Passport Agency is located at 1100 Commerce Street (Federal Building) in downtown Dallas and is designed to join the Houston Passport Agency in providing in-person passport services to American citizens throughout the southwest border region. The Dallas location provides access to a major domestic and international airport and will be instrumental in helping American citizens with their travel plans. The Dallas Passport Agency serves U.S. citizens who have urgent/emergency travel needs and has the capability to issue passport books on-site to qualifying applicants. Dallas will have the means to issue the U.S. passport card onsite in the near future. With the final phase of the Western Hemisphere Travel Initiative that was implemented in June, this agency will greatly improve our ability to meet the travel needs of our customers in several states along our southern border. Information on the cost and how to apply for a passport book and/or a passport card is available at travel.state.gov. U.S. citizens may also obtain passport information by phone by calling the National Passport Information Center toll-free at 1-877-487-2778.
THE U.S. PASSPORT CARD IS NOW IN PRODUCTION
The U. S Passport Agency began issuing of the U.S. Passport Card on July 14, 2008. Till now, they have issued over 1,000,000 U.S. Passport Cards. Applications for the U.S. Passport Card are being processed in approximately 4-6 weeks from the time of application. The wallet-size passport card is convenient and less expensive than the passport book. However, the U.S. Passport Card cannot be used for international air travel. This new travel document can be used to enter the United States from Canada, Mexico, the Caribbean, and Bermuda at land border crossings or sea ports-of-entry. This card also can be used as a second ID in addition to the driver’s license or picture ID, whenever such second ID is needed. It is always a smart idea to carry U. S Passport Card with you so that you can prove your legal status at any time it is needed under the new stringent laws being implemented in United States.
A current or previous passport book holder, who is eligible to use Form DS-82 , may apply for a passport card as a renewal by mail. First time applicants for a U.S. Passport, and those not eligible to use Form DS-82, must apply for a passport card in person using Form DS-11. The card has the same period of validity as the U.S. Passport Book: 10 years for an adult and 5 years for minors under age 16. The card costs $45 for a first-time adult passport applicant and $35 for all minor applicants under age 16, regardless of whether they are previous passport book or cardholders. Adults who already have a fully valid passport book may apply for the card as a passport renewal by mail and pay only $20.
To facilitate the frequent travel of U.S. citizens living in border communities and to meet DHS's operational needs at land borders, the passport card contains a vicinity-read radio frequency identification (RFID) chip. This chip points to a stored record in secure government databases. There is no personal information written to the RFID chip itself. With RFID technology, Customs and Border Protection inspectors will be able to access photographs and other biographical information stored in secure government databases before the traveler reaches the inspection station. The passport card uses state-of-the-art security features to prevent against the possibility of counterfeiting and forgery. In addition, a protective sleeve is provided with each passport card to protect against unauthorized reading or tracking of the card when it is not in use.
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, July 9, 2009
GENERAL INFORMATION ABOUT THE OPTIONAL PRACTICAL TRAINING INTERIM FINAL RULE (IFR) (SECOND PART)
Lal Varghese, Attorney at Law, Dallas
A student must work at least 20 hours per week in a qualifying position to be considered employed. If a student has a variable schedule, within a month, it should average out to at least 20 hours per week. Each day (including weekends) during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. OPT authorization begins on the employment start date shown on the student’s EAD. The only exception is that periods of up to 10 days between the end of one job and the beginning of the next job are not included in the calculation of time spent unemployed. This 10 day exception also applies to the first 10 days from the start date on the student’s EAD. All OPT employment, including post-completion OPT, is required by 8 CFR 214.2(f)(10)(ii)(A) to be in a job that is related to the student’s degree program.
For students who are not on a STEM extension, this employment may include: Paid employment. Students may work part time (at least 20 hours per week when on post-completion OPT) or full time. Students may work for more than one employer, but all employment must be related to each individual student’s degree program and for pre-completion OPT cannot exceed the allowed per week cumulative hours. Students, such as musicians and other performing artists, may work for multiple short term employers (gigs). The student should maintain a list of all gigs, the dates and duration. Work for hire. This is also commonly referred to as 1099 employment where an individual performs a service based on a contractual relationship rather than an employment relationship. If requested by DHS, students should be prepared to provide evidence showing the duration of the contract periods and the name and address of the contracting company. Self-employed business owner.
Students on OPT may start a business and be self-employed. The student should be able to prove that he or she has the proper business licenses and is actively engaged in a business related to his or her degree program. Students on post-completion OPT should be able to provide evidence showing they worked an average of at least 20 hours per week while employed by the agency. Students may work as volunteers or unpaid interns, where this practice does not violate any labor laws. The work should be at least 20 hours per week for students on post-completion OPT. A student should be able to provide evidence, acquired from the student’s employer, to verify that he or she worked at least 20 hours per week during the period of employment.
Students authorized for an OPT STEM extension must work at least 20 hours per week for an E-Verify employer in a position directly related to each individual student’s STEM degree. For students who are on a STEM extension, this employment may include: Paid employment. All employment during the STEM extension must be paid employment. Volunteer experience does not count as employment for the purpose of maintaining F-1 status during the STEM extension. Students may work for more than one employer, but all employment must be related to each individual student’s degree program and all employers must be enrolled in E-Verify. Work for hire. This is also commonly referred to as 1099 employment where an individual performs a service based on a contractual relationship rather than an employment relationship. The company for whom the student is providing services must be registered with E-Verify.
If requested by DHS, students must be prepared to provide evidence showing the duration of the contract periods and the name and address of the contracting company. Students on a STEM extension can start a business and be self-employed. In this situation, the student must register his or her business with E-Verify and work full time. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to his or her degree program. Students on a STEM extension may be employed by an employment agency or consulting firm. The employment agency or consulting firm must be registered with E-Verify, but the third parties contracting with the agency or firm (for which the student is providing services) need not be students on a STEM extension are allowed to volunteer, incidental to their status. This means that volunteer work is allowed but does not count as employment for the purpose of maintaining F-1 status.
Students may work for multiple employers, but all the employers must be enrolled in E-Verify. SEVP recommends that students maintain evidence — for each job — of the position held, proof of the duration of that position, the job title, contact information for the student’s supervisor or manager and a description of the work. If it is not clear from the job description that the work is related to the student’s degree, SEVP highly recommends that the student obtain a signed letter from the student’s supervisor or manager or the employer’s hiring official stating how the student’s degree is related to the work performed.
DSOs should advise students of the options available and on the potential problems associated with violating status by exceeding the period of authorized unemployment. A student who has exceeded the period of unemployment while on post-completion OPT has violated status unless he or she has taken one of the following actions: applied to continue his or her education by a change of level or transferring to another SEVP-certified school; departed the United States; taken action to otherwise maintain legal status.
A student may work with an expired employment authorization document while a STEM extension is pending since it automatically extend a student’s work authorization for up to 180 days while the student’s STEM extension application is pending. A student may change employers while the STEM extension application is pending with USCIS. However, if the STEM extension period has started, the employer must also be an E-Verify employer. The student must report the change in employment to his or her DSO. The DSO must update the student’s employer information in SEVIS and the student should submit an amended Form I-765 to the appropriate USCIS Service Center, providing the new employer’s E-Verify number and a copy of the USCIS receipt notice for the first Form I-765. A brief letter explaining the submission should also be included. There is no fee associated with submitting the amended Form I-765. A student may not travel outside of the United States if his or her employment authorization document expires and the STEM extension request is pending with USCIS. The student must wait to receive the new employment authorization document. A student may change employers during the STEM extension. However, the employer must also be an E-Verify employer. The student must report the change in employment to his or her DSO. (Concluded)
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 or www.indiaimmigrationusa.blogspot.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
A student must work at least 20 hours per week in a qualifying position to be considered employed. If a student has a variable schedule, within a month, it should average out to at least 20 hours per week. Each day (including weekends) during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. OPT authorization begins on the employment start date shown on the student’s EAD. The only exception is that periods of up to 10 days between the end of one job and the beginning of the next job are not included in the calculation of time spent unemployed. This 10 day exception also applies to the first 10 days from the start date on the student’s EAD. All OPT employment, including post-completion OPT, is required by 8 CFR 214.2(f)(10)(ii)(A) to be in a job that is related to the student’s degree program.
For students who are not on a STEM extension, this employment may include: Paid employment. Students may work part time (at least 20 hours per week when on post-completion OPT) or full time. Students may work for more than one employer, but all employment must be related to each individual student’s degree program and for pre-completion OPT cannot exceed the allowed per week cumulative hours. Students, such as musicians and other performing artists, may work for multiple short term employers (gigs). The student should maintain a list of all gigs, the dates and duration. Work for hire. This is also commonly referred to as 1099 employment where an individual performs a service based on a contractual relationship rather than an employment relationship. If requested by DHS, students should be prepared to provide evidence showing the duration of the contract periods and the name and address of the contracting company. Self-employed business owner.
Students on OPT may start a business and be self-employed. The student should be able to prove that he or she has the proper business licenses and is actively engaged in a business related to his or her degree program. Students on post-completion OPT should be able to provide evidence showing they worked an average of at least 20 hours per week while employed by the agency. Students may work as volunteers or unpaid interns, where this practice does not violate any labor laws. The work should be at least 20 hours per week for students on post-completion OPT. A student should be able to provide evidence, acquired from the student’s employer, to verify that he or she worked at least 20 hours per week during the period of employment.
Students authorized for an OPT STEM extension must work at least 20 hours per week for an E-Verify employer in a position directly related to each individual student’s STEM degree. For students who are on a STEM extension, this employment may include: Paid employment. All employment during the STEM extension must be paid employment. Volunteer experience does not count as employment for the purpose of maintaining F-1 status during the STEM extension. Students may work for more than one employer, but all employment must be related to each individual student’s degree program and all employers must be enrolled in E-Verify. Work for hire. This is also commonly referred to as 1099 employment where an individual performs a service based on a contractual relationship rather than an employment relationship. The company for whom the student is providing services must be registered with E-Verify.
If requested by DHS, students must be prepared to provide evidence showing the duration of the contract periods and the name and address of the contracting company. Students on a STEM extension can start a business and be self-employed. In this situation, the student must register his or her business with E-Verify and work full time. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to his or her degree program. Students on a STEM extension may be employed by an employment agency or consulting firm. The employment agency or consulting firm must be registered with E-Verify, but the third parties contracting with the agency or firm (for which the student is providing services) need not be students on a STEM extension are allowed to volunteer, incidental to their status. This means that volunteer work is allowed but does not count as employment for the purpose of maintaining F-1 status.
Students may work for multiple employers, but all the employers must be enrolled in E-Verify. SEVP recommends that students maintain evidence — for each job — of the position held, proof of the duration of that position, the job title, contact information for the student’s supervisor or manager and a description of the work. If it is not clear from the job description that the work is related to the student’s degree, SEVP highly recommends that the student obtain a signed letter from the student’s supervisor or manager or the employer’s hiring official stating how the student’s degree is related to the work performed.
DSOs should advise students of the options available and on the potential problems associated with violating status by exceeding the period of authorized unemployment. A student who has exceeded the period of unemployment while on post-completion OPT has violated status unless he or she has taken one of the following actions: applied to continue his or her education by a change of level or transferring to another SEVP-certified school; departed the United States; taken action to otherwise maintain legal status.
A student may work with an expired employment authorization document while a STEM extension is pending since it automatically extend a student’s work authorization for up to 180 days while the student’s STEM extension application is pending. A student may change employers while the STEM extension application is pending with USCIS. However, if the STEM extension period has started, the employer must also be an E-Verify employer. The student must report the change in employment to his or her DSO. The DSO must update the student’s employer information in SEVIS and the student should submit an amended Form I-765 to the appropriate USCIS Service Center, providing the new employer’s E-Verify number and a copy of the USCIS receipt notice for the first Form I-765. A brief letter explaining the submission should also be included. There is no fee associated with submitting the amended Form I-765. A student may not travel outside of the United States if his or her employment authorization document expires and the STEM extension request is pending with USCIS. The student must wait to receive the new employment authorization document. A student may change employers during the STEM extension. However, the employer must also be an E-Verify employer. The student must report the change in employment to his or her DSO. (Concluded)
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 or www.indiaimmigrationusa.blogspot.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.
Saturday, May 16, 2009
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.
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.
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.
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