Finding Your Place In Line For A 'Green Card'

For many foreign nationals living in the United States waiting to apply for a ‘green card’, a daily routine is to log-on to the U.S. Department of State website to check the status of their ‘priority date’ on the State Department’s ‘Visa Bulletin’.  Those who logged in yesterday were surprised to see the publication of the October 2015 Visa Bulletin with an extra Priority Date table.  But what does it mean? 

It’s a fairly significant new development.

But to grasp its significance, let’s take a step back to look at the big picture.

The U.S. Department of State regulates the issuance of ‘green cards’ based upon the distribution of immigrant visas around the world.  Since the demand for ‘green cards’ by natives of some countries (such as China, Mexico and India) is greater than the demand from other countries, there are not enough immigrant visas to supply the demand from these oversubscribed countries.  Consequently, there is a backlog of ‘green cards’ for these natives.

 Foreign nationals who originate from these countries must therefore ‘stand in line’ to wait to apply for their ‘green card’.  Their place in line is determined by the date the person either filed an immigrant visa petition – or an employer filed a labor certification application on this person’s behalf.  This date is known as a ‘Priority Date’.

Each month the U.S. Department of State publishes a ‘Visa Bulletin’ that charts the Dates of ‘green card’ applications being processed.  If a foreign national’s own ‘Priority Date’ is a date that precedes the ‘Priority Date’ published in the Visa Bulletin, that person is then eligible to file an application for a ‘green card’.  For example, if a foreign national has a ‘Priority Date’ of October 3, 2011, and the Priority Date shown on the Visa Bulletin for that person’s category shows January 1, 2012, then that foreign national may then apply for a ‘green card’.

Until the individual’s Priority Date precedes the Priority Date published in the Visa Bulletin, one could not file an application for a ‘green card’.   Until now…

The October 2015 Visa Bulletin offered a pleasant surprise for many:  a new, second chart known as a ‘Filing Date’ Chart.  Under this new provision, the U.S. Department of State will allow foreign nationals to file a ‘green card’ application based upon a new ‘Filing Date’ – rather than waiting for the date previously referred to simply as the ‘Priority Date’.  For most visa categories, the ‘Filing Date’ is more recent than the older ‘Priority Date’ (which is now also referred to as the ‘Final Action’ Date).

What this means is that the ‘Final Action Date’ is the date that the U.S. Department of State will actually process the ‘green card’ application.  This generally corresponds with the previous ‘Priority Date’ charts to which we were accustomed.  In other words, the U.S. Department of State will still wait until the foreign national’s ‘Priority Date’ is current before making a decision on the application – but the individual may now file the application well beforehand – based upon the new ‘Filing Date’ chart.

 Why is this important?  Because when a foreign national gets to file an Application for a ‘green card’, she may also concurrently file an application for Employment Authorization and Advance Parole (the ability to travel while the ‘green card’ application is pending).  In other words, ‘green card’ applicants from the oversubscribed countries may get some of the benefits that accompany a ‘green card’ application while still waiting in line for their ‘green card’ application to be processed.

So for example, this is how it might work: a foreign national from China in the EB-2 category (professional holding an advanced degree) may have a ‘Priority Date’ of June 12, 2013 based upon a Labor Certification Application filed on her behalf.  The ‘Priority Date’ / (Final Action Date) published in the October 2015 Visa Bulletin shows the Priority Date for that category to be January 1, 2012.  In previous months, this person would have to continue waiting until the Visa Bulletin shows a Priority Date in that category after June 12, 2013, before she could file an application – which may be a year or more away.  However, the new Visa Bulletin now shows a second ‘Filing Date’ chart that shows a date of May 1, 2014.  Since the foreign national’s ‘Priority Date’ precedes this new ‘Filing Date’, she is eligible to go ahead and file the ‘green card’ application.  Even though it still will not be processed until her June 12, 2013 Priority Date becomes current under the ‘Priority Date / Final Action Date, she can nonetheless go ahead and file the application and get Employment Authorization and Advance Parole for a family member(s) while they continue to wait in line for her Priority Date to become current.

The U.S. Department of State also asserts that allowing these foreign nationals to apply ahead of time will allow the State Department to more accurately predict the future availability of immigrant visas that will need to be processed.  Based upon the recent wild fluctuations in the Priority Dates for some of these categories in the past year, this can only be a good thing.

So, at the end of the day, these foreign nationals will still have to wait in line, as before – but at least they get to snack on some fairly significant benefits while standing there.

Is There a Doctor In The House…or Senate?

 

A long-term patient known as ‘Conrad’ is about to expire on September 30, 2015 unless Congress can resuscitate it and provide a permanent cure.

The ‘Conrad 30’ Program, named after former North Dakota Senator Kent Conrad - the law’s original sponsor, is a program for foreign physicians who come to the U.S. with a J-1 visa to complete their medical residency.  The J-1 visa permits foreign medical graduates to receive education and training in a Residency program in the U.S.  However, one of the terms of the J-1 visa – also known as an ‘exchange-visitor’ visa – is that it requires the visa holder to return to his or her home residence for 2 years before being eligible to adjust status or change to another type of visa that permits her to practice medicine in the U.S.  In other words, the newly-trained physician must return home for 2 years before being able to practice medicine in the U.S… unless….

…the physician is able to get a ‘waiver’ of the 2-year home residency requirement found in §212(e) of the Immigration & Nationality Act.

There are several ways in which any J-1 visa holder may request a ‘waiver’ of the 2-year home residency requirement; among these are ‘subject to persecution’ if she were to return to her home residence, exceptional hardship, and other scenarios with very high standards that not everyone can meet.  But physicians have a friend in ‘Conrad’.

The ‘Conrad 30’ program is designed specifically for physicians who desire a waiver of the 2-year home residency requirement.  Each state runs its own ‘Conrad 30’ program with its own set of guidelines, but there are a few fundamental terms that all ‘Conrad 30’ programs share; among those are that a physician must be willing to serve at least 3 years in H-1B visa status working at least 40 hours/week in a federally-designated medically underserved area providing primary care – and sometimes specialty care – to the underserved population.   You already know why it’s named ‘Conrad’; the ‘30’ stands for the number of slots available in each state for physicians willing to serve in these medically underserved areas.

Although there are some other programs that provide ‘waivers’ for physicians in J-1 visa status, (for example, Appalachian Regional Commission, the U.S. Department of Health & Human Services, U.S. Dept. of Veterans Affairs, etc.), these other programs have narrow restrictions that limit their availability.  It is recognized that the Conrad 30 program is likely the most useful waiver program for physicians in J-1 status.

However, the original Conrad 30 program had a ‘sunset’ date that has been extended by Congress to keep the program alive for years.

Unless you’ve been in a coma for the past several years, you must recognize that the volatility and rancor of our elected leaders in Congress make the prognosis of their cooperation on an immigration bill anything but certain.

 This year presents a risk that the program will die due to the negligence – and perhaps the intentional refusal of care - of our politicians.

The good news is that Senators Klobuchar of Minnesota and Heitkamp of North Dakota have introduced a Bill in the Senate, (S. 1189) that not only extends the life of the Conrad 30 program, but makes it a permanent federal law by removing the ‘sunset’ provisions.

Known as the ‘Conrad State 30 and Physician Access Act’, this bill would also clarify certain elements of the National Interest Waiver for physicians and permitting the spouses of H-1B visa-holding physicians to change status to other types of visas besides the ‘H-4’ derivative visa, among other things.

The ‘Conrad State 30’ Program is a powerful incentive for healthcare systems in rural, urban and other medically underserved areas to attract and keep physicians to care for communities in need of primary care medical services.  Many healthcare systems rely heavily upon the benefits of the Conrad 30 program to staff their hospitals and facilities - and foreign medical graduates recognize the valuable benefit it provides for them; its demise would impact these communities disproportionately.

So if you were waiting for the right opportunity to contact your U.S. Senator or Representative on an issue that overwhelmingly affects the health of small, rural communities, this would be a good time to ask for their support of Senate Bill 1189 – before it’s too late.

Immigration by Executive Order

Last night, President Barack Obama announced a new Executive Order designed to address several (of many) immigration issues facing our country.  The first understatement is to acknowledge that his use of an Executive Order has drawn considerable controversy.

First, let's address the Executive Order issue.  President Obama, like Presidents Ronald Reagan and George H.W. Bush before him, has used an 'Executive Order' to address the problem of undocumented persons in the United States - but that doesn't necessarily make it a desirable approach.  I think everyone would agree that a well-considered, bi-partisan Congressional bill reflecting joint compromise would be a more acceptable and supportable approach to dealing with this issue.  Most people have forgotten, but a mere 16 months ago, the U.S. Senate was able to overwhelmingly pass such a comprehensive bi-partisan immigration bill.  Unfortunately, it never made it into the House of Representatives for a vote, so it appears that the best chance of handling the immigration issue in a cooperative legislative fashion is in our past.
 It should also be noted that since the President cannot pass legislation on his own, he is actually fairly limited in what he can do from an Executive standpoint.  Taking this action does not create a new opportunity for legal status, it does not create a new law and does not change the law as it now exists; it does, however, change the way certain portions of the law, interpreted in the federal regulations, are carried out.  In doing so, however, it broadens and expands benefits that certain undocumented persons may secure.

The Executive Order addresses five different initiatives to address the immigration system.  Three of these initiatives are concrete proposals that have real impact on certain immigration procedures.  The other two statements are simply aspirational comments.

Briefly, here are 3 fundamental areas of immigration practice affected by the President's actions:



DEFERRED ACTION FOR PARENTS OF U.S. CITIZENS

What it does:  Under this provision, certain persons who are not lawfully present in the U.S. but have children who are U.S. citizens or Lawful Permanent Residents ('green card' holders) would be able to gain the benefit of not being removed from the country ('deported').  And while they are in the U.S., they are given permission to work, pay taxes and abide by the labor laws of this country.

Who is affected:  Only parents who have been in the U.S. since January 1, 2010 and whose children are U.S. citizens or Lawful Permanent Residents may apply for this benefit.

What this changes:  Presently, this benefit known as 'Deferred Action' is already available in certain cases, and by Executive Order in the summer of 2012, was expanded to specifically include children who were brought to the U.S. before the age of 16.  This prior Executive Order is referred to as Deferred Action for Childhood Arrivals, (or 'DACA'). 
     Currently, U.S citizens over the age of 21 may sponsor a parent for Lawful Permanent Residency - but - typically the parent has accrued unlawful presence such that he or she would be barred from entering the U.S. for 10 years if the parent were to leave the U.S. to obtain his or her 'green card'.  
     The President's Executive Order of November 20, 2014 further extends 'Deferred Action' to allow these same parents the opportunity to remain in the U.S. and work based upon the presence of a son or daughter - regardless of age - who is either a U.S. citizen or a Lawful Permanent Resident.  It does not permit them an alternative opportunity to get Lawful Permanent Residency.

When it starts:  It is anticipated that this benefit will become available before the end of May 2015.



DEFERRED ACTION FOR CHILDHOOD ARRIVALS ('DACA')

What it does:  Under this provision, the population of eligible applicants for DACA (described above) is expanded by allowing more recent arrivals to apply, eliminates the age limit and extends work authorization to three (3) years.

Who is affected:  Persons who were brought here as children well before June 15, 1981 - as well as those who have arrived after June 15, 2007 but before January 1, 2010 -  may now apply for this benefit.  Current DACA recipients can take advantage of an additional 1 year of work authorization when they renew their request for DACA benefits.

What this changes:  Presently, one of the criteria for DACA is that the person was under the age of 31 as of June 15, 2012; this leaves out persons born before June 15, 1981 and who came to the U.S. as children.  Now, the age limit is eliminated and anyone meeting the rest of the criteria is eligible to apply.  In addition, the present policy requires that an applicant also prove that he or she has resided in the U.S. continuously since June 15, 2007.  The new provision extends that date to January 1, 2010, so that more recent arrivals may now also apply for this benefit.
     Finally, the original DACA Executive Order permits work authorization to a successful applicant for two (2) years.  That period of work authorization will now be extended to three (3) years.

When it starts:  It is anticipated that these extended benefits will become available before the end of February 2015.



PROVISIONAL WAIVERS OF UNLAWFUL PRESENCE

What it does:  Under this provision, the population of eligible applicants for a Provisional Waiver, ('601A' Waiver), is expanded to include sons and/or daughters of U.S. citizens and Lawful Permanent Residents.

Who is affected:  Older children of U.S. citizens - as well as children of Lawful Permanent Residents - who are now permitted to apply for a Provisional Waiver.

What this changes:  An individual who has remained in the U.S. unlawfully for 180 days - and leaves the U.S. - is subject to a 'bar' of returning to the U.S. for 3 years.  If the individual is in the U.S. unlawfully for 1 year or more, the 'bar' is 10 years.  A 'Waiver' of the 3 or 10 year bar is available for an individual who is subject to the 'bar' - but is nonetheless eligible to get a 'green card' at a U.S. Consulate abroad - if the person can show that it would create an 'extreme hardship' to a U.S. citizen spouse or parent of the applicant.  The 'Waiver'  gives this applicant the ability to return to the U.S. immediately without having to wait for the end of the 3 or 10 year 'bar'.  Normally, one applies for the 'Waiver' after he or she has left the country (thus triggering the 'bar') to interview for the 'green card' at the U.S. Consulate abroad. 
     Through executive action in 2013, President Obama created a 'Provisional' or '601A' Waiver that permitted an individual who is a spouse or child of a U.S. citizen to take advantage of the Waiver before the individual left the country for a 'green card' - thus giving certainty to the applicant that he or she could immediately return to the U.S. after the 'green card' appointment. 
     Under the new provisions of the November 20, 2014 Executive action, persons eligible to take advantage of the '601A Provisional Waiver' program will be expanded to include adult children of U.S. citizens as well as spouses and children of Lawful Permanent Residents, as well.
     Finally, the term 'extreme hardship' will be more clearly defined and, presumably, less restrictive, than before (although this remains to be seen).

When it starts: Unknown; generally whenever new regulations are issued.


Finally, there are several aspirational statements committing the Executive Branch of the U.S. Government to work towards refining, expanding and expediting the process for the Labor Certification Applications ('PERM'), employment authorization for certain dependents of H-1B visa holders, the immigration visa issuance process and others.

Over the next several weeks, we will be exploring in more depth the significance and practicalities of these new initiatives so that you can gain a better understanding of what may lie ahead.

Thoughts Following the 11^th Annual FBA Immigration Seminar:

The I-601(a) Waiver, DUIs, Tattoos, DACA and Arrabally and Yerrabelly, and My-a-Belly

May 2014

                Earlier this month, May 16-17, 2014, the Federal Bar Association hosted the 11^th Annual Immigration Law Seminar in Memphis, Tennessee. The Seminar kicked off with a presentation rejoicing of the (partial) death of DOMA and the good news this brought for same-sex couples seeking immigration benefits. It closed with a celebratory beverage on Beale Street for most attendees. I opted for a celebratory catfish dinner at a local creole restaurant with some old friends, but have no doubt Beale Street would have been a fabulous option as well.

                The general mood throughout the seminar was a mixture of hope—many practicing attorneys are still optimistic that comprehensive immigration reform is coming—and the sort of nervous energy that only trying to absorb enough information to make your head spin will create. Personally, I found the dense nature of the information being presented to be daunting and invigorating at the same time. As a new attorney, nothing is more encouraging than reviewing skills that are old hat, and as exciting as realizing how much more there is to learn when you are confident that it can be learned.

                The relatively new I-601(a) waiver took center stage for one of the presentations I attended and will be discussed in depth in this post. Issues regarding DUIs (citations for driving under the influence) and tattoos popped up in multiple presentations in a variety of contexts and will also be discussed. This post will end with a discussion of the potentially positive consequences of the recent Arrabally and Yerrabelly decision for DACA (Deferred Action for Childhood Arrivals) recipients who have received Advance Parole. As for the reference in the title to My-a-Belly, suffice it to say My-a-Belly enjoyed some tasty Memphis barbeque at the Memphis in May barbeque festival on the river…no event in Memphis would be complete without it!

                The 601(a) waiver is designed to help individuals who apply for immigrant visas through a qualifying relative, but would be barred from re-entering the US following their visa interview abroad. Unfortunately, prior to this waiver, individuals who would otherwise be eligible for a green card were not obtaining these benefits for fear they would leave the country to complete the process and then be found inadmissible based on their prior unlawful presence. This waiver allows the individual to prove that disallowing them from re-entering would cause extreme hardship to their U.S. relative(s) and grants them a waiver that cures the inadmissibility prior to their departure from the U.S. This removes the uncertainty of applying for a waiver after leaving the country from the equation.

                When this waiver was introduced immigration attorneys rejoiced—this cured a catch 22 too many clients faced! However, the high expectations for this waiver were thwarted by USCIS’s aggressive approach to the adjudication of these waivers. Attorneys at the Seminar estimated the denial rate was as high as 40%--half of which was based on USCIS’s belief there might be other grounds of inadmissibility—i.e. a criminal basis. In fact, nearly all waiver applications that included a DUI were denied on the ‘reason to believe there are other grounds of inadmissibility’ exception and most applications were subjected to boilerplate Requests for Evidence that delayed the process by requesting evidence already submitted. Fortunately, USCIS has decided to re-review previous denial sua sponte and has become more generous with approvals over the last month or so, but this waiver still has not lived up to the expectations many attorneys had at its inception.

                As mentioned, USCIS treated DUIs much more harshly in the 601(a) waiver context than anticipated, but it appears that this is part of a growing trend. In fact, many attorneys at the seminar reported that although DUIs are not considered a crime involving moral turpitude, and generally are not a ground for inadmissibility alone, they are increasingly used as a medical ground for inadmissibility. Individuals who have had a recent DUI may be requested to attend a psychological screening (especially if the process is in Juarez, Mexico), and some have even been required to attend Alcoholics Anonymous on the assumption that having even a single DUI may be indicative of alcoholism or other mental illness.

                Tattoos, often discovered in medical examinations, are also receiving a heightened level of scrutiny. There is a general assumption that tattoos indicate gang affiliations. Therefore, ask your clients about their body art, what it means, and why they have it so that they can be prepared to answer questions associated to these issues at their interviews. In extreme circumstances, be prepared to hire an expert to provide evidence that a tattoo is not gang-related.

                Not all of the reports from the Seminar were negative—one recent case, Arrabelly and Yerrabelly, provides a potential benefit for DACA recipients and others who receive Advance Parole. In the Arrabelly case, a couple seeking benefits received Advance Parole to visit their aging parents and left the country. Unfortunately, they had overstayed their visas and accrued more than one year of unlawful presence, triggering the ten year bar which disallows re-entry. Following an order of removal and an appeal, the BIA held that leaving the U.S. under Advance Parole did not effect a ‘departure’ under the Immigration and Nationality Act that would result in inadmissibility based on their prior, unlawful presence.

By logical extension, this may apply to DACA recipients who travel abroad on Advance Parole and re-enter with inspection—effectively curing problems created by a prior entry without inspection. In response to this notion USCIS has tightened up approvals of Advanced Parole for DACA recipients and it is expected that a future Memorandum interpreting Arrabelly will limit the case to its facts. But, for the moment DACA recipients lucky to receive Advance Parole may want to consider adjusting status, if possible, to avoid the issues any prior entry without inspection will inevitably create.

This year’s Seminar certainly left my colleagues and I with a lot to consider. We have clients who received DACA for whom we are anxious to try to adjust status, and may have future clients with DUIs or tattoos who will benefit from the information gathered at the Seminar related to these issues. I am looking forward to next year’s Seminar and learning more about these complex issues as my practice, and Hunter Smith and Davis’s practice grows in general.

Experience Counts

Most of the employees I see coming to this country for professional jobs for my client employers want to become Lawful Permanent Resident, and, eventually, U. S. Citizens.  It is their goal not only to work here, but also to “live the dream”.  One of the first questions I get when filing for their L or H status is: “When can I get my ‘green card’?” 

For non-immigrant workers, that path to a green card often begins with the PERM Process, or the Permanent Labor Certification Process.  This is a process that must be initiated by an employer for an employee, and often employees will make that a condition of their employment during their hiring process.  A benefit of this process is that it takes into account the derivatives listed on the non-immigrant petition when the employee came to work in the United States.  Therefore, within one process, a non-immigrant worker, his/her spouse, and their minor children can all get their “green cards” at once.  Another benefit of this process is that if the filing is done within a certain time period, non-immigrant workers in H-1B status can extend their stay past the normal expiration date for a non-immigrant worker in H-1B status.  This is particularly important for those workers from one of the countries that have a waiting period before the actual lawful permanent resident application (Form I-485) can be filed. 

One of the most important steps in this process is the proof that the beneficiary of this process is qualified for the job for which the recruitment was done and the Labor Certification was issued.  An important part of that proof is the experience letter, which is the best and most useful documentation of the experience of the employee to be sponsored.  An experience letter is a letter from your previous employer(s) showing not only that the applicant has experience, but also that the applicant has the relevant experience for the job being offered.   Unfortunately for the applicant, that experience shouldn’t come from their current employer, even at another location.

As we work with the employers to obtain lawful permanent resident status for one of their employees, we will assist in the preparation of the experience letter to be sent to a previous employer.  The reason for this is that experience letters are more than just a matter of detailing that an employee worked somewhere and the dates of that employment, but also what that employee did while there to show that the employee has the experience required for the position.  Experience letters need to be on the letterhead of the previous employer, contain the name and contact information for the person signing the letter, the title and relationship to the employee of the person signing the letter, the start and end date of the employee’s employment, the title of the employee while at that company, whether the position was full or part-time, and a brief job description of the duties performed by the employee while at the company.  The job description should contain duties and tasks which are relevant to the position that employee has, or will have, with the employer who is sponsoring that employee for their lawful permanent resident status.   All of these elements should be in the experience letter as proper evidence of the employee’s experience and/or training.  If any of these elements are missing or lacking, USCIS can, and most likely will, reject the letter and conclude that the petitioner has failed to prove that the employee has the required experience or training.

These experience letters must be from a person who has direct knowledge of the actual work the employee performed while working for the previous employer.  This also needs to be a person who directed that work, not just a co-worker.  The best person to provide that experience letter will be a manager that was directly over the employee or their supervisor, either of whom is still working for the previous employer.  Other alternatives are managers or supervisors further up in leadership chain of the company who have managerial or supervisory responsibilities over the former employee’s direct manager and/or supervisor and are still with the previous employer.  Finally, if there are no managers or supervisors that were there when the employee was at the previous employer, then the letter can be signed by someone in the human resources department to confirm the dates of hire and the job duties for the position the previous employee was in.

However, some of the employee’s previous employers may have been acquired by another company in a merger or buyout.  This can create problems, but, with enough forewarning, steps can be taken to get a previous manager or supervisor, who is with the new company, sign an experience letter while providing USCIS enough information regarding why the information is being provided by the a new company.  This will allow USCIS to determine that the information from this new company is actually the same as if it had come from the previous employer.  This process, however, takes more time and can delay the filing of the I-140 if not started early in the PERM Process.

Another problem is when the previous employer is no longer in business.  Sometimes, if an employee is aware of his employer’s financial difficulties and is concerned over that employer’s viability to continue to do business, it is advisable to have that employer write an experience letter, detailing all of the information above, very shortly after the employee obtains new employment so that the employee is not stuck without the very valuable experience letter if the company closes.  When a company dissolves, the records are often lost or destroyed and there is no way to obtain an experience letter from that previous employer.  However, all is not lost.  USCIS has allowed for former managers or supervisors who are with new companies to write experience letters on behalf of a former employer since it is impossible to obtain an experience letter from that previous employer.  The requirements of the experience letter do not change, but the wording has to address why the letter is not from the previous employer, but rather from a different company where the employee had no previous contact and detailing that the previous employer is no longer in business.

While experience letters are not needed until the I-140 petition filing stage, we get them as soon as possible in the PERM Process.  Experience letters allow us to confirm exact dates of employment for the Labor Certification Application; to verify experience needed for the job being recruited for to make sure that the employee has the required experience for the job; and to determine if additional steps are going to have to be taken to get the experience letter that is needed due to some of the scenarios discussed herein.  The experience letter relates to the entire PERM Process; and experience counts.

Fiancé and Marriage Based Immigration

There are many ways an individual may immigrate to America, but few clients are as driven as my K-1 fiancé(e) visa clients or my clients seeking a ‘green card’ for their new spouse. These two benefits, though different in many ways, are both available for Americans who have decided they want to spend their lives with someone from another country.

As our world becomes increasingly connected, international relationships seem to be more commonplace. This may be due to online dating sites, globalized markets, increased travel, and the ability to speak to a loved one overseas via webcam, or through chat rooms and instant messaging. Regardless of the reason, fiancé(e) visas and spousal immigrant visas are on the rise. Nearly 27,977 fiancé(e) visas were issued in 2012, up from approximately 7,783 in 1992. Likewise, nearly 273,429 spousal immigrant visas were issued in 2012, up from approximately 118,247 in 1992.[1]  

Even though thousands of these visas are issued annually, a substantial portion of petitions are also rejected. Some petitions are fraudulent and as such should be rejected, but others are simply not properly supported. Unfortunately, a denial can be an impossible hurdle and a heartbreaking end to an otherwise budding relationship. 

Knowing that approval is not a given, couples seeking fiancé(e)/spousal immigration benefits must tread carefully. Generally, hiring a competent immigration attorney will provide a couple with the best chance for success. However, couples who educate themselves so that they are better able to work with their attorney are even better positioned for success.

One of the first decisions couples will need to make is whether to file an I-130, Petition for Alien Relative to seek spousal benefits or to file an I-129F, Petition for Alien Fiancé(e). The decision is easy for individuals who are already legally married—they will typically file the I-130.[2]

A successful I-130 petition must show the “bona fide” nature of the marriage. This will include proof that both parties were able to legally marry, a valid marriage certificate, passport photos, a Form G-325 for each party (showing biographic data), and supporting evidence.[3]

If your spouse is overseas, they will need to go through a procedure called “consular processing” before entering the U.S., but will enter as a legal permanent resident (“green card” holder). If your spouse is already here, they will need to adjust status with Form I-485 to obtain their green card.

Couples who are not yet married may consider filing the I-129F, fiancé(e) visa petition (of course, they could choose to get married and pursue an I-130). The fiancé(e) visa is a 'non-immigrant' (or 'temporary') visa that permits the fiancé(e) to come to the U.S. for the purpose of getting married.

A successful petition requires the couple to show that they have met in person in the last two years and that they intend to get married within 90 days of the beneficiary’s arrival in the United States. Although this proof seems easier than an I-130 on its face, it is advisable to include similar elements of proof to a fiancé(e) visa petition as you would to an I-130 to ensure success.

After obtaining a fiancé Visa and getting married, the immigrant must adjust status by filing a Form I-485 to obtain legal permanent residency. Again, the couple should plan to show the bona fide nature of their marriage with the I-485 to ensure success.

If the couple has not been married for at least 2 years prior to receiving lawful permanent residency, they must file a Form I-751 to show the validity of their marriage after having been married two years. If they are not still together, the beneficiary must seek a waiver of the requirement to file a joint petition in order to remove the condition and become a permanent resident.

In the past, fiancé(e) visas were processed much more quickly than Form I-130 immigrant visa petitions, but now both petitions are processed in somewhat similar periods. Given this, the processing time does not offer a big advantage to choosing one over the other for most cases, but this is a decision you will need to make with your attorney based on many other factors that affect your individual decision.

Regardless of your choice, we wish you and your significant other all the best!

---

[1] http://www.dhs.gov/yearbook-immigration-statistics

 

[2] It is possible for individuals who are already married to file a K-3 fiancé(e) petition for a non-immigrant visa. This option is not addressed in this post, but is similar to the K-1 fiancé(e) visa that is addressed, except the individuals applying for it are married at the time of filing.

 

[3] This evidence may include evidence of joint debts or assets (i.e. a mortgage or loan in both parties’ names, a joint lease, joint checking, savings, or credit accounts, both names on a title or deed) evidence of children born to the marriage (i.e. birth certificates), and other evidence such as joint membership to various clubs or organizations, evidence of traveling together, photographic evidence, affidavits from individuals familiar with both parties and their relationship, shared insurance policies, and a variety of other items that show that the couple intends to build a life together.

 

Immigration in the 21st Century

Welcome to the Hunter, Smith & Davis, LLP Immigration Blog!

The Immigration Practice Group at Hunter, Smith & Davis, LLP, (known informally as 'HSD Immigration') is pleased to offer this source of information, commentary and insight into immigration in the 21st Century.

The hot topic of immigration is not limited to foreign nationals - it affects everyone - and it is not just an American issue.  The reality of accessible transportation and advanced communication has facilitated the migration of people all over the globe.  And some nations are dealing with it better than others.

The tragedy of the deaths of more than 80 African immigrants after their boat capsized off the coast of Italy last October brought attention to the desperate plight of persons encountering danger while seeking to escape their own dangerous or hopeless situations.  Syrians fleeing violence end up straining the resources of Jordan and neighboring states as they seek safety in refugee camps while Eastern Europeans seeking economic opportunities in Western Europe often find hostile communities there.  Immigration is a global issue.  Finding ways to accommodate the new reality of global migration is one of the great challenges of the 21st Century.

In the U.S.,  we are facing the immediate challenge of navigating between securing the border against threats to our national security while providing opportunities to persons around the world who offer a diverse mix of cultures, gifts, knowledge and experience that give the United States its preeminent character.

You will not find this blog to be a political forum for debate on the issue of immigration reform.  The reason for this is simple: it is recognizing up front that one of the few things that both parties - and their constituents - universally agree upon is that the current immigration system is dysfunctional.  What we will do along the way is help readers come to a fuller understanding as to why it is dysfunctional and identify areas for change.  There is no need to align with one political identity or another to do this.

For example, in about 2 months, immigration practitioners around the country will scramble, sweat and steer their clients through the ridiculous annual rite of the 'H-1B Games'.

[For those who do not know, the 'H-1B visa' is a popular visa for foreign professionals working in a 'specialty occupation'.  There are approximately 65,000 that become available on October 1 of each year.  Since an H-1B visa petition cannot be filed more than 6 months in advance, the first day one may apply for an H-1B visa is April 1 of each year (this is no April Fool's joke).  Unfortunately, the demand for these visas is easily twice as much as the number of available visas.  So one April 1 of each year, the FedEx and UPS trucks line up outside of the USCIS Service Centers full of H-1B petitions that everyone in the country has filed at once.]

For the past several years, because there are not enough visas to fulfill the need, the 'H-1B Games' (like the 'Hunger Games') has devolved into a 'Lottery' at which time USCIS will randomly and arbitrarily choose which professionals will get the opportunity to have their Petitions examined for a visa.  Invariably, world renowned researchers, physician specialists and other valuable talent sit out for another year while others - some less deserving, others perhaps more deserving - get an opportunity for a visa simply by the whims of chance. 

These are important developments that affect the lives of individuals, their employers and companies that rely upon employees with these specialized skills and training to excel in today's global economy.

Existing immigration laws also affect families who arrive and stay in the U.S.  One of the fundamental principles of U.S. immigration laws has been 'family unity', but the haphazard federal and state legislation and inconsistent application of laws and regulations have left many families scattered and hopeless about the chances of reunification.

At Hunter, Smith & Davis, we encounter these and many other of the myriad of immigration circumstances that affect employers, employees and families striving to contribute to the American Dream.  We are therefore in a  unique vantage point to elucidate, comment and inform you on the latest developments and issues in immigration law.

We hope you will continue to join us as we navigate these challenges moving forward into the 21st Century.  Welcome.  

Bienvinedo.
歡迎
Benvenuto
Willkommen
आपका स्वागत है
Welkom
Bienvenue

                                              -Your HSD Immigration Team-

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