Green Card & Visa News » Green Card

When is a Lawful Permanent Resident considered seeking admission to the United States?

Tushar Mathur — Mon, 24 Oct 2011 05:21:00 +0000

The United States immigration laws confer certain rights and privileges to a person who has been granted Lawful Permanent Resident (LPR) status by the government. These individuals, commonly known as green card holders, are authorized to work and live in the United States indefinitely. Legal residents are also allowed to return to the United States after international travel. Nonresidents, on the other hand, are considered applicants for admission and must establish that they are admissible to the United States in order to enter.

Sec. 101(a)(13)(C) of the Immigration and Nationality Act provides that a returning LPR should not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the legal resident (i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings and extradition proceedings, (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

If either one of the six conditions apply, the returning green card holder is considered an applicant for admission and will be subject to less legal protection that he or she normally enjoys as a legal resident. A LPR is like a person who is returning home with a key (his green card) while an applicant for admission is like a visitor asking for permission to enter another person’s house. A visitor seeking admission but not a legal resident is subject to all the grounds of inadmissibility contained in the immigration statutes. When a legal resident is placed in removal proceedings, the government must first prove by clear, unequivocal, and convincing evidence that the grounds and basis for deportation are true before the person may be removed from the United States. The burden of proof is on the government to prove that the person is deportable. Similarly, to treat a returning resident as seeking admission to the United States, the Department of Homeland Security bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident falls under one of the above six categories of individuals.

For example, in a recent Board of Immigration Appeal (BIA) case, Matter of Benno Rivens, decided October 19, 2011, the Board remanded the case to the Immigration Judge to analyze if the offenses committed by the respondent – a green card holder – constitute a crime involving turpitude (CIMT). (This falls under condition v above.) If the DHS meets its burden by proving by clear and convincing evidence that the respondent had committed a CIMT, then he would be treated as an applicant for admission. Further, since convictions of CIMTs are also grounds of inadmissibility, he would also not be allowed to be admitted to the United States and, consequently, he would lose his green card. On the other hand, if the government fails to meet it burden of proof, the respondent would be allowed to return to the United States as a lawful permanent resident.

Hence, before a legal resident travels outside of the United States, it is very important for him to determine whether or not he will be regarded as a returning resident or an applicant for admission upon his return. Sometimes, it may be wise for a legal resident not to depart the United States at all.

EB-2 India and China Advanced to November 1, 2007 in November Visa Bulletin

Tushar Mathur — Wed, 05 Oct 2011 20:54:00 +0000

Good news for Indian and Chinese EB-2 green card applicants: the cut-off dates advanced 2 1/2 months to November 1, 2007 in November's visa bulletin just released by the State Department.

LA Asylum Fraud and Asylum Reform

Tushar Mathur — Mon, 19 Sep 2011 17:29:00 +0000

Recently, an immigration consulting business in Los Angeles was charged by the authorities with immigration benefit fraud and failing to disclose their role as preparers on hundreds of asylum applications. This story may not be news for people who are familiar with immigration news. It is just another immigration fraud case, one may say. However, it offers some insights into the political asylum application process in the U.S.

The U.S. as a country of immigrants and freedom has always embraced the idea of providing protection for those who need it. It has incorporated the definition of “refugee” from the United Nations Convention and Protocol Relating to the Status of Refugees in the domestic law. Simply put, a refugee is a person outside her country or last place of residence who is unable or unwilling to return to that country or place because of persecution or a well-founded fear or persecution on account of race, religion, nationality, membership in a particular social group of political opinion. A person who meets the definition of a refugee may apply for political asylum if such a person is physically present in the U.S.

Because of the benefits that it offers to the applicant, including an opportunity to obtain a U.S. green card and employment authorization, political asylum has become the target of fraud and abuse. Prior to 1995, by filing an asylum application, a person was able to also obtain an employment authorization document (EAD) at the same time, thus providing a strong motive for filing fraudulent asylum applications. In 1996, Congress amended the Immigration Act to implement asylum reform. An applicant who is found to have filed a frivolous asylum application is barred from applying for any immigration benefits in the future. Further, an applicant is not able to obtain an EAD until 180 days have elapsed after filing of an asylum application. Individuals who are involved in asylum fraud – including the applicant herself – are subject to civil and criminal punishment.

Asylum reform was effective for a short period of time. However, greed trumps fears of punishment again after a while when unscrupulous scammers got used to the new process. They continued to advertize their services and lure the undocumented foreigners to submit frivolous asylum applications. Sadly, these foreigners are the real victims of the story. Some of them may not even know what was being filed on their behalf. Take the recent LA-area immigration fraud case as an example – two men were charged with preparing and filing bogus asylum applications for hundreds of Chinese individuals based religious persecution. Reportedly, these applications contain fabricated stories of religious persecution with identical accounts of happenings. No wonder they were caught by the authorities! All of these cases will be reopened and reviewed once again. Most if not all of them will be denied. These applicants will likely never be able to apply for any immigration benefit. They could also be charged with fines and put in jail. This is after each of them has paid anywhere between $3,500 and $6,500 to the agency.

Perhaps what is worse is the collateral damage caused by this kind of fraudulent cases – it greatly reduces the chances of genuine asylum applicants to obtain protection in the U.S. Proving an asylum claim by itself is already a formidable task. Adjudicators of asylum applications will be extra careful when examining asylum applications after reading reports of asylum fraud such as the LA case. This story also suggests that more is needed to be done to improve the U.S. asylum process. Most immigrants tend to seek assistance from the folks who speak their language and who come from their place of origin. More non-profit organizations and outreach programs should be set up in immigrant communities to provide correct legal advice and information for newcomers to America.

VAWA self-petitions can be filed by the victim between the ages of 21 and 25

Tushar Mathur — Thu, 08 Sep 2011 23:38:00 +0000

The USCIS has issued a policy memo dated September 6, 2011, to allow victims of abuse to file their self green card petitions even though they are over the age of 21 if it is filed before the age of 25. The Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005) amended section 204(a)(1)(D) of the Immigration and Nationality Act to allow continued eligibility for certain individuals to file a VAWA self-petition after the age of 21, if the abuse was at least one central reason for the filing delay.

The Religious Worker Path to a Green Card

Tushar Mathur — Wed, 11 May 2011 20:21:00 +0000

If you work for a recognized religious organization, either as a minister or a religious worker, you might qualify for a green card as a special immigrant. You can apply for your green card as a minister or religious worker from inside the U.S.—if you are in lawful status and not working without authorization—or from abroad. You start the process by filing an I-360 petition on your own or through your employer. Whether you or your employer files the petition, the prospective U.S. employer must submit certain documentary evidence, including an attestation showing that certain requirements have been met regarding the organization, its history of filing this type of petition and the position and salary.

Now, the immigration regulations define a “minister” as someone who is fully authorized by a religious denomination to conduct religious activities, such as a minister, priest, rabbi, imam, ordained deacon, or Buddhist monk. A “religious worker” is defined as someone who is in a religious vocation or occupation and is authorized to perform normal religious duties, such as religious instructors, religious counselors, missionaries, religious broadcasters, workers in religious hospitals and cantors. Purely non-religious workers and volunteers are not included in this definition. Over the years the regulations defining religious occupations have changed and there has been litigation over varying interpretations. Someone attempting to immigrate under this category would be well advised to consult with an immigration attorney about their specific circumstances.

To qualify for a green card as a minister or religious worker, for at least 2 years immediately before filing the visa petition, you must have been a member of a religious denomination that has a bona fide, nonprofit, religious organization in the U.S.

Also, you must be seeking to come to the U.S. to work full time (35 hours) in a paid position, purely to carry on your vocation as a minister or to work for a bona fide, nonprofit religious organization in the U.S. or its affiliate in the U.S.

Finally, you must have been working as a minister or religious worker—abroad or lawfully in the U.S.—for at least 2 years immediately prior to filing the visa petition. (There can be breaks in the 2-year period but only in certain situations. And, unauthorized employment during the 2-year period stops the 2-years from accruing but it can be restarted again.)

Because of a recent court decision, immigrants can no longer file both the visa petition for a special immigrant visa as a religious worker and the green card application at the same time. This applies specifically to the religious worker classification. Currently, any green card application (I-485) that is based on a special immigrant petition (I-360) for a special immigrant religious worker must be filed only after you have an approved I-360 petition.

In addition, currently, all religious workers (not ministers) must enter the U.S. with a valid immigrant visa or adjust to permanent resident status (have an approved I-485) before September 30, 2012. This date might be extended in the future, but this is the current law.

Visa Backlog Expected to Go Down For Spouses & Children!

Tushar Mathur — Thu, 10 Feb 2011 04:46:00 +0000

I have heard from a reliable source in Seattle earlier this week that the State Department backlog for the Family 2A preference category–spouses and children of permanent residents–will likely be going down very soon. This is a big deal. Currently, as of the February 2011 Visa Bulletin, there is a three (3) year wait for green card holders who are applying for their spouses and children (under 21). If this changes, and the backlog starts to be cleared up, we will start seeing much faster processing times for family-based visa petitions, meaning that families will not have to wait as long as they were expecting in order to be reunited.

According to the same source, the number of visas available for the Family 2B preference category–unmarried sons and daughters (21 years of age or older)–will be increasing but processing times will not be as fast as the Family 2A. Currently, as of the February 2011 Visa Bulletin, there is a nearly eight (8) year wait for this category. Any improvement would obviously be welcomed.

So, green card holders who are waiting for their priority date to become current or who are considering applying for their loved ones to join them should watch the Visa Bulletin closely for signs of movement. The March bulletin should be published in the next several days. Here is the link to check: http://www.travel.state.gov/visa/bulletin/bulletin_1360.html

February 2011 Visa Bulletin – Family remains retrogressed; Employment sees slight advancements

Tushar Mathur — Fri, 14 Jan 2011 13:54:00 +0000

The February 2011 Visa Bulletin was released recently by the State Department. In general, there is not much positive movements in the cut off dates for both family and employment petitions. On the family side, the retrogression that started in January continues to be a problem. As discussed previously, the rapid forward advancements in family cut off dates during the past two years have caused a huge increase in demand for family immigrant visa numbers. As a result, the U.S. State Department must hold back visa usage by retrogressing the cut off dates. The pull back is particularly serious in the F2A and F4 categories. Some of our clients do not understand why their cases have changed from being “current” to being two years behind all of a sudden.

Specifically, F1 (unmarried sons and daughters of citizens) remain unchanged for most of the countries; F1 Philippines advances to 8/1/1994 by two months while F1 Mexico moves forward by two weeks to 01/22/1993. F2A (spouses and minor children of green card holders) and F2B (adult, unmarried sons and daughters of green card holders) remain unchanged for the most part except F2B Philippines, which advances two weeks to 06/01/1999. F4 (brothers and sisters of U.S. citizens) also suffers from major setback. F4 goes back two years to 01/01/2000 for most countries except Mexico (1/1/96) and Philippines (1/15/88).

On the employment side, most of the preference categories remain unchanged or advances only slightly. Once again, EB-2 China and India remain stagnant. Eb-3 Philippines tiptoes forward by one week to 04/01/2005 while EB-3 India advances three weeks to 02/22/2002. EB-1 remains current across the board. EB-3 India Other Worker also advances three weeks.

Please visit http://travel.state.gov/visa/bulletin/bulletin_5228.html to review the February 2011 Visa Bulletin.

How a Divorce Can Hurt Your Immigration Case

Tushar Mathur — Wed, 05 Jan 2011 15:09:00 +0000

Three of the most common times when a divorce can negatively impact a person’s immigration case are: (1) when someone is waiting for their green card (a.k.a. applying to adjust their status); (2) when someone is trying to change a conditional residence status to permanent residence status; and (3) when someone is waiting on their naturalization (citizenship) application.

First, if an immigrant is married to a U.S. citizen and applies for a green card, but divorces the U.S. citizen before the green card is approved, the immigrant will no longer be eligible for a green card. The only exception is when the U.S. citizen spouse was abusive.

Second, as you may know, if an immigrant obtains a green card based on a marriage to a U.S. citizen, and that marriage occurred within the last two years, the green card is conditional and expires after two years. In order to remove the condition, the immigrant and the U.S. citizen spouse must file a petition (Form I-751) within 90 days before the card expires. (The petition must be accompanied by supporting documentation showing that the marriage is not a sham. USCIS will either: approve the petition; request additional evidence; refer the case for an interview; or, deny the petition and refer it to an Immigration Judge.) The petition must be filed jointly; however, if the couple is divorced, the immigrant will file the petition him or herself and seek a waiver of the joint filing requirement, which is only granted if: (a) the marriage was entered into in good faith but was legally terminated; (b) the immigrant’s deportation would cause the immigrant extreme hardship beyond the normal hardship of someone who is deported; or, (c) the marriage was entered into in good faith but the immigrant was abused by the U.S. spouse.

If you are applying for a waiver it is highly recommended that you hire an immigration attorney since this is not a routine application but rather it requires submitting substantial documentary evidence. It is also important to note that the couple can still file the petition jointly if they are separated or their divorce is not yet finalized. But, if the couple files a joint petition and their divorce is finalized before the USCIS has rendered a decision then the petition will be denied and the immigrant will have to file a new petition with a waiver request.

Third, divorce can negatively affect an immigrant trying to naturalize based on a U.S. citizen spouse. For example, in a recent California federal district court case, the plaintiff had applied for naturalization based on his U.S. citizen wife after he had been a lawful permanent resident for three years. However, while his naturalization application was pending, the plaintiff divorced his wife. The court found that the plaintiff was not eligible for naturalization because as a result of the divorce, the 5-year residency requirement for naturalization applied instead of the 3-year residency requirement after becoming a lawful permanent resident. Alenazi v. USCIS No. 09-cv-2053 (S.D. Cal. October 12, 2010).

As you can see, the timing of a divorce can have real consequences in immigration proceedings, which are best dealt with by planning ahead and consulting with a knowledgeable immigration attorney.

Seattle Immigration Lawyer | Intro to Getting a Green Card Through Employment

Tushar Mathur — Sat, 09 Oct 2010 06:44:00 +0000

This will be the first of several blog posts covering employment-based immigrant visas—the route to a green card through employment. Only 140,000 immigrant visas are made available per year for immigrants, along with their spouses and children, who wish to immigrate based on their job skills. On top of that, there is a quota that limits every country to seven percent of the available green cards every year. (There is no quota for immediate relatives of U.S. citizens.) And, several categories (known as “preferences”) of employment-based immigrant visa petitions require that the sponsoring employer file a labor certification application with the U.S. Department of Labor (“DOL”) before filing a visa petition. As I will discuss later, some preferences require an employer sponsor while others permit the immigrant to self-petition.

Make no mistake, acquiring permanent residency through a job is a long process—in fact, it often takes years. If your goal is to obtain a green card through your job or offer of employment, there is rarely anything to be gained from waiting to begin the process. An experienced immigration attorney can advise you or your employer, based on your specific circumstances, as to which visa petition to file, where to file (in the U.S. or abroad), on the labor certification process (if applicable), and in designing an immigration strategy to keep you in lawful status throughout the long process, so you remain eligible for a green card.

If the visa preference you are applying under requires labor certification, then this is the first step. Assuming the certification is granted by DOL, the next step is to file the immigrant visa petition with USCIS. Once USCIS approves the immigrant visa petition, the Department of State still must issue an immigrant visa number to you in order for you to qualify to apply to adjust your status to permanent resident. Sometimes it takes years from when USCIS approves your visa petition to when you are issued an immigrant visa number. Recall that, by law, the number of immigrant visas for each country is restricted—thus if your country of origin is one in which there are a lot of other people applying for U.S. immigrant visas then you will be waiting longer. An immigration attorney can advise you on the delays to expect and in formulating a visa strategy.

Also, for some preferences, the availability of an immigrant visa number depends on the priority date. In this context, the priority date is determined by your country of birth and the preference you are applying under. Once your priority date is current, there is no waiting period. For cases where labor certification is required, your priority date is set by that process. For the EB-1/National Interest Waiver preference, the priority date is when the I-140 immigrant worker visa petition was received by USCIS. To check whether your priority date is current, look at the monthly Visa Bulletin issued by the State Department.

Stay tuned for my next few Seattle Immigration Lawyer Blog posts, which will look at labor certification and the different employment visa preferences.

Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card Cont’d – Living in the U.S. and Married to a LPR

Tushar Mathur — Fri, 01 Oct 2010 16:09:00 +0000

I have used the last three postings of the Seattle Immigration Lawyer Blog to discuss this popular topic and after this current posting it will be time to move on. In this last scenario, if the immigrant spouse is living in the U.S. and married to a U.S. LPR, the LPR files the visa petition with USCIS, which goes into the now familiar “lockbox.” When the immigrant spouse’s priority date is current, or close to that time, the petition will hopefully be approved.

But, here is where it really gets ugly. The immigrant spouse living in the U.S. who is married to a U.S. LPR may be trapped because the only way he or she can stay in the U.S. and adjust status (apply for a green card) is if he or she has been in status, that is legally living in the U.S., this whole time, and not working illegally. (There is an exception if you started the process when earlier laws governed. As always, you should consult with an experienced immigration attorney to determine if any exceptions apply to you.)

As an immigration lawyer, and simply as a person with at least some common sense, I think this is quite frankly, unfair. After all, it could take years before your priority date is current. (Or not, it depends on the backlog. As of Sept. 2010, the priority date for 2A was 1/1/2010. But, for example, just last year there was a backlog of around 5 years.) One option is to leave the U.S. before staying illegally for 6 months, wait for the priority date to become current and go through the consular processing system abroad.

However, as is often the case, the spouse has been living out of status in the U.S., which could trigger a bar on re-entry to the U.S. (there are various bars, the main two are: 3 year bar for those unlawfully present for 180 days after 4/1/97; 10 year bar for those unlawfully present for 365 days after 4/1/97).

Another option would be to stay in the U.S., out of status, and hope to adjust status once the priority date is current, but the immigrant spouse would be vulnerable to removal the whole time, which is not a pleasant way to live, and, of course, illegal.

Yet another option would be to leave the U.S. after staying longer than 6 months out of status, but less than a year, so the 3 year inadmissibility bar applies but not the 10 year. Whether this is crazy or not depends on the waiting period, and the processing times for your consulate.

Of course, ideally, the U.S. LPR spouse will become naturalized, which will allow you to upgrade the application and do away with the “lockbox”. I can’t think of a good reason to wait until your U.S. LPR spouse is a citizen before filing the green card application. If your spouse becomes a citizen, that’s wonderful, you can upgrade the petition then, but you might as well get in line right away.