Green Card & Visa News » Immigrant Visa

New hope for foreigners who are subject to the three/ten year bar

Tushar Mathur — Tue, 10 Jan 2012 21:44:00 +0000

A new proposal by the Department of Homeland Security (DHS) brings new hope to foreigners who are subject to the three and ten year bars because of their unlawful presence in the United States. Rather than leaving the United States to apply for a waiver at an overseas consulate office, these foreigners would be allowed to have their waiver pre-adjudicated by the USCIS in the United States according to the proposal. If their waiver applications are approved, they would still be required to depart the U.S. to apply for immigrant visas to return to the United States.

The 3/10 Year Bar
Section 212(a)(9) of the Immigration and Nationality Act provides that any noncitizen who after having been unlawfully present in the United States for 180-364 days and then voluntarily departs the country before they are placed in removal proceedings is not allowed to return to the United States for three (3) years. Similarly, a noncitizen who has been unlawfully present in the United States for one year or longer and then departs or is deported is not allowed to return to the United States for ten (10) years. These are known as the 3-year-bar and the 10-year-bar. There are some exceptions for asylum applicants, battered spouses, certain family unity beneficiaries and minor children. Furthermore, the unlawful period can be tolled for good cause and non-frivolous requests for extensions. Otherwise, if these noncitizens wish to return to the United States, they must first obtain a waiver from the U.S. government. The Department of Homeland Security has discretion to waive the 3/10-year-bars if the noncitizen can show that his U.S. citizen or legal resident spouse or parent will suffer extreme hardship if he is not allowed to return to the U.S.

Catch 22
For many foreigners who have accrued unlawful presence in the United States but are otherwise eligible for an immigrant visa, they are caught in a “Catch 22” situation. On the one hand, they are not allowed to apply for a green card within the United States because of their unlawful status. On the other, they do not want to leave the country for fear that they would not be able to return to the U.S. because of the 3/10-year-bars. Even if they are eligible to apply for a waiver based on hardship of their spouses and/or parents, they are afraid that the waiver might not be approved. The current policy is that the wavier must be filed with an overseas DHS office. In short, they are stuck between two equally undesirable options.

The New Proposal
The DHS recently announced that it intends to publish in the Federal Register a proposal to revise the procedures for determining the unlawful presence (family unity) waivers for spouses and children of U.S. citizens. The new proposal creates an “in-country processing” mechanism for noncitizens who are spouses and children of U.S. citizens to file the unlawful presence waiver. A noncitizen who has accrued unlawful presence would be able to apply for the waiver from within the United States. This “in-country processing” proposal would permit USCIS to grant a provisional waiver. Applicants would still be required to depart from the U.S. before receiving a final approval on their application. By pre-processing the family unity waiver, the applicant’s waiting time will be shortened. Currently applicants face a long wait when seeking a waiver outside the U.S. The goal of this new proposal is to encourage more noncitizens to come forward to file their immigrant and waiver petitions in the United States.

This process, however, does not change the legal requirements for immigrant visa petition or the family unity waiver application. The “law” regarding immigrant visas and waiver adjudication has not been changed. The change is only procedural in nature. Further, it is important to note that the proposal will not cover spouses and children of legal permanent residents. They must still follow the existing procedure and apply for a waiver at an overseas U.S. consulate office. Finally, applicants must not rely on this proposal yet until it is finalized. Thus far, the DHS has only published a statement of intent to propose the change. It is expected that the change will not be finalized until the end of 2012. Interested foreigners may start gathering documentary evidence to establish their eligibility for a waiver but should not act hastily before they have discussed their case with a qualified immigration attorney.

U Visa – An important tool for crime victims to obtain legal status

Tushar Mathur — Fri, 06 Jan 2012 15:04:00 +0000

Many immigrants in the United States are hesitant to approach police and other law enforcement officers when they become crime victims. For people who are in the U.S. without legal status, they try to avoid contacts with police officers for fear that their illegal status may be exposed. Even legal immigrants are sometimes afraid to approach police in the U.S. because of cultural differences and language barriers. Most of them do not know that there exists a special visa designed for victims of certain crimes called the U visa. The purpose of the U visa is to provide eligible victims of crimes with temporary nonimmigrant status so that they may assist law enforcement agencies in criminal investigations and prosecutions.

Congress created the U visa in The Victims of Trafficking and Violence Prevention Act (VTVPA) of 2000 to encourage victims to report crimes and help law enforcement officials to investigate and prosecute criminal activities regardless of the victims’ immigration status. Women and children are especially vulnerable to certain crimes such as human trafficking, sexual assault and domestic violence. If a U visa petition is approved, the petitioner receives nonimmigrant status to live and work in the United States for up to four years. Subsequently, qualified recipients may apply to adjust status to become a lawful permanent resident (green card) after three years of continuous presence in the U.S. as a U visa holder. There are other eligibility requirements for a green card as well, including the ongoing duty to cooperate with law enforcement in the investigation or prosecution of the qualifying crime. Additionally, other immediate family members of U visa recipients may also be eligible to live and work in the United States as derivative U visa recipients. These family members include: Unmarried children under the age of 21 of principal U visa recipients; Spouses of principal U visa recipients; Parents of principal U visa recipients under age 21; and Unmarried siblings under 18 years old of principal U visa recipients under age 21.

To apply for a U visa, one must file the USCIS Form I-918, Petition for U Nonimmigrant Status (Form I-918), and submit it to U.S. Citizenship and Immigration Services (USCIS) with all relevant documentation, including Form I-918B, the U visa law enforcement certification. The Form I-918B is a requirement for the U visa and must be certified by a qualified law enforcement agency including a federal, state, local law enforcement agency, prosecutor, judge, or other authority that has the responsibility for the investigation or prosecution of a qualifying crime. Essentially, the law enforcement agency must certify that the petitioner was a victim of a qualifying crime, has specific knowledge and details of crime, has been, is being, or is likely to be helpful to law enforcement in the detection, investigation, or prosecution of the qualifying crime. Qualifying crimes includes qualify for the U visa including murder, robbery, abduction, rape, sexual assault, kidnaping, incest, perjury, prostitution, obstruction of justice, etc.

The U visa is an extremely important incentive for victims of crimes to come forward to testify against the perpetrators. Because of the complexity of U visa petitions, applicants should seek assistance from a legal representative or victim advocate. It is important to know that certification by a law enforcement agency does not guarantee approval of a U visa. The USCIS must determine if other requirements of the U visa are met including whether the applicant has suffered substantial physical or mental abuse as a result of the subject criminal activity. However for victims of serious crimes without legal status especially women and children, the U visa may be their only hope to fight back.

Chennai will no longer process Immigrant Visa petitions as of January 1, 2012.

Tushar Mathur — Fri, 06 Jan 2012 15:01:00 +0000

“Important Announcement: The U.S. Consulate General in Chennai will no longer process Immigrant Visa petitions as of January 1, 2012. The U.S. Consulate General in Chennai will no longer process Immigrant Visa petitions as of January 1, 2012. The U.S. Embassy in New Delhi and U.S. Consulate in Mumbai will become the only acceptance centers in India for Immigrant Visas.
The Immigrant Visa allows an individual to live and work in the United States on a permanent basis, as well as provides the immigrant the opportunity to work towards U.S. citizenship.
Examples of Immigrant Visa based petitions are those that work toward family reunification of parents, children and siblings. These petitions also include Fiancée and the unique employer category, where one’s employer can petition for the individual and their dependents to immigrate to the United States. This change affects only the locations for processing of Immigrant Visas; it does not change the law or policy for visa processing. Applicants currently in the process of petitioning for an Immigrant Visa may contact ChennaiIVU@state.gov for clarification.”

Source: The U.S. Consulate General in Chennai

Important issues about the filing of I-485 adjustment application

Tushar Mathur — Sat, 24 Dec 2011 00:16:00 +0000

The cutoff dates for employment based 2^nd preference immigrant visa for China and India have advanced significantly for the past three months. Since November 2011, the cutoff dates have leaped forwarded by more than 17 months to January 1, 2009. The rapid advancement means that many EB-2 professionals and advance degree holders are able to submit their I-485 application to adjust status to that of legal resident of the United States. Simultaneously the applicant may also apply for a general employment authorization document (EAD) and a travel document. Upon approval of the I-485 application, the applicant will receive her permanent resident card (or green card). There are some important issues related to this last step of the immigration process.

First and foremost, an applicant must ensure that she is not subject to any grounds of inadmissibility that would cause the denial of her green card. The U.S. immigration laws specify certain classes of individuals who are not allowed to immigrate to the U.S. For example, foreigners who have a communicable disease are not eligible to enter the U.S. Similarly, individuals who have serious physical or mental disorder which may pose danger to others are also excluded from admission. Persons who have been convicted for “crimes involving turpitude” are usually not allowed for admission. There are some waivers and narrow exceptions to some of these grounds of exclusions but serious criminal offenders are most certainly not eligible for these exceptions. If a person is found not eligible for a green card, she may also be placed in removal proceedings by the Department of Homeland Security. Hence it is important to evaluate one’s background before applying for permanent resident status.

Extensive documentation is required to support an I-485 adjustment application including one’s immigration background documents, employment related documents, tax and financial documents, medical health report, and all the required application forms. The fingerprints of the applicant will be taken and a thorough background check will be conducted by FBI. The sponsoring employer must also provide evidence that it will permanent employment to the applicant.

Another common issue of I-485 applicants is lapses in status in the past because of lay-offs and other reasons which resulted in their violations of nonimmigrant status. A H-1B employee might have been “benched” by an employer in tough economic times; an F-1 student could have been failed to maintain a full-time course load due to financial or health reasons; etc. Certainly applicants such as J-1 exchange visitors might also need a waiver for his foreign residence requirement. Again, careful planning and analysis is required for applicants with specific status problems.

Foreign spouses and children of I-485 applicants are also eligible to apply for permanent resident status as derivative applicants. Hence, if an applicant has plans to get married, he may want to adjust his plans in such a way that his future spouse would be able to adjust status as well. However, sufficient evidence should be presented to prove that the marriage is not one of convenience. The Department of Homeland Security will scrutinize new marriages carefully to ascertain that no elements of fraud are involved.

The medical examination required for immigration can also be an issue for some applicants. For example, many applicants from Asian countries initially test positive for TB (pulmonary tuberculosis), which is a contagious bacterial infection, although they have not been infected with the bacteria. The false positive result could have been caused by previous vaccinations that they received in Asia. Applicants must work closely with their attorney and physician to use further tests to confirm that they are not contagious. Otherwise, they would not be eligible to receive a green card.

BIA held F2A visa beneficiaries may not "opt out" of automatic conversion to F1

Tushar Mathur — Fri, 07 Oct 2011 04:19:00 +0000

The Board of Immigration Appeal (BIA) has just held that a visa beneficiary is not allowed to retain his F2A preference status by opting out of automatic conversion to the F1 category as a son of a United States citizen upon his parent’s naturalization. Matter of ZAMORA-MOLINA, ID 3729, 25 I&N Dec. 606 (BIA 2011)

The mother of the beneficiary son filed a visa petition on his behalf when he was under the age of 21. However, while the case was waiting for a visa number, the son turned 21 and, subsequently, the mother became a naturalized citizen.

The regulation automatically converts a F2A (minor unmarried child of resident parent) and F2B (adult unmarried child of resident parent) petition to be an immediate relative and F1 petition respectively upon the naturalization of the petitioner. 8 C.F.R. § 204.2(i)(3)

Section 6 of The Child Status Protection Act (CSPA), also known as section 204(k)(2) of the INA, allows an alien to affirmatively opt out of automatic conversion from the F2B category to the F1 category by filing a written statement with the Attorney General. However, BIA held that there is no provision of law that allows an applicant to “opt out” of automatic conversion from F2A to F1 when the petitioner-parent becomes a citizen. Hence, the son in this case is not able to adjust his status by using the current cut-off date under the Mexico F2A preference category.

This is a very important decision on a controversial issue. BIA did not address the Equal Protection argument raised by the son as it lacks authority to rule on Constitutional issues. However, the issue is hardly settled and will likely be revisited by a federal court soon.

USCIS proposes rule to process EB-5 immigrant petitions filed between 1995 and 1998

Tushar Mathur — Thu, 29 Sep 2011 04:25:00 +0000

On Sept. 27, 2011, the USCIS announced that it has published a new rule for the processing of certain applications approved between 1995 and 1998 by foreign investors under the fifth preference employment-based immigrant visa classification (EB-5). The authority of the rule comes from the 21st Century Department of Justice Appropriations Authorization Act.

The new rule applies to approximately 580 principal immigrant investors who had their Immigrant Petition by Alien Entrepreneur (I-526) approved between Jan. 1, 1995, and Aug. 31, 1998. Their dependents are also covered.

In addition to an approved I-526 petition, these applicants must have also met the following condition prior to Nov. 2, 2002: Either filed a Form I-485 to attempt to adjust their status, or a Form I-829 to seek to remove their conditional permanent residence status obtained as an alien entrepreneur.

The proposed rule, if adopted, would provide an additional two-year period of time for these immigrant investors to meet the EB-5 investment and job-creation requirements. Other Eb-5 applicants would not be affected by this new rule. The public has 60 days to submit comments on this proposal. The new rule is accessible at www.regulations.gov.

USCIS Continues to Accept Adjustment Applications with Current Priority Dates

Tushar Mathur — Sat, 17 Sep 2011 01:51:00 +0000

In spite of the State Department’s notification to USCIS that all EB immigrant visa numbers have been exhausted for FY2011, the USCIS today announced that it will continue to accept adjustment of status applications (I-485) based on the September visa bulletin through the entire month of September. The regulations provide that the visa bulletin published by the State Department controls whether or not there are visa numbers available for an adjustment applicant. The September visa bulletin does not indicate unavailability of visa numbers in any of the EB preference visa categories.

Employment-Based Immigrant Visa Exhausted for FY2011

Tushar Mathur — Thu, 15 Sep 2011 19:43:00 +0000

The State Department's Immigrant Visa Control section has notified the USCIS that all employment based immigrant visas have been used up for fiscal year 2011, as reported by AILA. No visa numbers
would be authorized effective 09/15/2011 until the end of September (the end of the fiscal year). Immigrant visa numbers will become available again on October 3, 2011 as FY2012 begins. USCIS adjudication officers may continue to submit requests for visa numbers as usual. These requests will be put on hold until October 3, 2011 by the State Department. Strong demand for employment visas and processing from August is the reason for the exhaustion, according to the State Department.

Filing of I-130 petitions in foreign countries centralized in Chicago

Tushar Mathur — Mon, 29 Aug 2011 13:40:00 +0000

Starting Aug. 15, 2011, petitioners who live in foreign countries without USCIS offices must file their Form I-130, Petition for an Alien Relative, with the U.S. Citizenship and Immigration Services (USCIS) lockbox facility in Chicago. The addresses are listed below. However, Petitioners living in a country with a USCIS office may choose to send their I-130 petition to the USCIS Chicago addresses, OR file at the USCIS office in that country. The current processing time is approximately five months, as reported by the USCIS.

Please note: Filing addresses and procedures change constantly. You should always check the current instructions in the form or USCIS.gov website.

For U.S. Postal Service:
USCIS
P.O. Box 804625
Chicago, IL 60680-4107

For express mail and courier deliveries:
USCIS
Attn: I-130
131 South Dearborn – 3rd Floor
Chicago, IL 60603-5517

DV-2012 Diversity Visa Lottery Results

Tushar Mathur — Tue, 16 Aug 2011 19:30:00 +0000

The Kentucky Consular Center of the State Department has once again released the results of the DV-2012 diversity lottery. The winners have been registered and notified by mail. They may apply for an immigrant visa or adjustment of status (if they are in the U.S.) between the months of October 2011 and September 2012.

This year there were a total of 14,768,658 applicants (19,672,268 if dependents are counted) who entered the lottery drawing during the 30-day application window of October 5, 2010 – November 3, 2010.

Applicants should note that only the selected applicants (“winners”) were notified by mail. If you have not been notified by the State Department, it means that you have not been selected. Be warned of many scams out there who would send you false winning notifications and demand fees and payments from applicants.

The following is the statistical breakdown by foreign-state chargeability of those registered for the DV-2012 program:

AFRICA
ALGERIA 1,799 ANGOLA 42 BENIN 511 BOTSWANA 7 BURKINA FASO 226 BURUNDI 56 CAMEROON 3,374 CAPE VERDE 9 CENTRAL AFRICAN REP. 3 CHAD 33 COMOROS 9 CONGO 105 CONGO, DEMOCRATIC REPUBLIC OF THE 3,445 COTE D’IVOIRE 553 DJIBOUTI 38 EGYPT 4,664 EQUATORIAL GUINEA 4 ERITREA 670	ETHIOPIA 4,902 GABON 48 GAMBIA, THE 113 GHANA 5,832 GUINEA 899 GUINEA-BISSAU 3 KENYA 4,720 LESOTHO 8 LIBERIA 2,101 LIBYA 136 MADAGASCAR 17 MALAWI 16 MALI 76 MAURITANIA 29 MAURITIUS 59 MOROCCO 1,890 MOZAMBIQUE 13 NAMIBIA 10 NIGER 32	NIGERIA 6,024 RWANDA 333 SAO TOME AND PRINCIPE 0 SENEGAL 270 SEYCHELLES 6 SIERRA LEONE 3,397 SOMALIA 175 SOUTH AFRICA 833 SUDAN 757 SWAZILAND 0 TANZANIA 175 TOGO 845 TUNISIA 113 UGANDA 418 ZAMBIA 79 ZIMBABWE 123

ASIA
AFGHANISTAN 109 BAHRAIN 29 BANGLADESH 2,373 BHUTAN 5 BRUNEI 0 BURMA 370 CAMBODIA 596 HONG KONG SPECIAL ADMIN. REGION 54 INDONESIA 256 IRAN 4,453	IRAQ 153 ISRAEL 175 JAPAN 435 JORDAN 152 NORTH KOREA 0 KUWAIT 108 LAOS 1 LEBANON 274 MALAYSIA 118 MALDIVES 0 MONGOLIA 209	NEPAL 3,258 OMAN 11 QATAR 19 SAUDI ARABIA 217 SINGAPORE 45 SRI LANKA 708 SYRIA 160 TAIWAN 391 THAILAND 73 TIMOR-LESTE 9 UNITED ARAB EMIRATES 92 YEMEN 149

EUROPE
ALBANIA 1,508 ANDORRA 1 ARMENIA 998 AUSTRIA 130 AZERBAIJAN 304 BELARUS 493 BELGIUM 105 BOSNIA & HERZEGOVINA 83 BULGARIA 883 CROATIA 107 CYPRUS 26 CZECH REPUBLIC 104 DENMARK 73 ESTONIA 49 FINLAND 91 FRANCE 574 French Polynesia 7 New Caledonia 1 GEORGIA 620 GERMANY 1,709 GREECE 105	HUNGARY 325 ICELAND 56 IRELAND 213 ITALY 529 KAZAKHSTAN 434 KOSOVO 137 KYRGYZSTAN 321 LATVIA 83 LIECHTENSTEIN 0 LITHUANIA 258 LUXEMBOURG 8 MACEDONIA 160 MALTA 20 MOLDOVA 1,238 MONACO 3 MONTENEGRO 18 NETHERLANDS 149 Aruba 4 Curacao 19 St. Maarten 2 NORTHERN IRELAND 59	NORWAY 84 PORTUGAL 66 Macau 19 ROMANIA 1,327 RUSSIA 2,353 SAN MARINO 1 SERBIA 298 SLOVAKIA 80 SLOVENIA 16 SPAIN 232 SWEDEN 200 SWITZERLAND 229 TAJIKISTAN 270 TURKEY 3,077 TURKMENISTAN 143 UKRAINE 5,799 UZBEKISTAN 4,800 VATICAN CITY 0

NORTH AMERICA
BAHAMAS, THE 15

OCEANIA
AUSTRALIA 900 Christmas Islands 3 Cocos Islands 1 FIJI 628 KIRIBATI 14 MARSHALL ISLANDS 4 MICRONESIA, FEDERATED STATES OF 2	NAURU 5 NEW ZEALAND 309 Cook Islands 6 Niue 14 PALAU 5 PAPUA NEW GUINEA 0 SAMOA 0 SOLOMON ISLANDS 0	TONGA 93 TUVALU 0 VANUATU 8 WESTERN SAMOA 9

SOUTH AMERICA, CENTRAL AMERICA, AND THE CARIBBEAN
ANTIGUA AND BARBUDA 9 ARGENTINA 101 BARBADOS 25 BELIZE 9 BOLIVIA 84 CHILE 43 COSTA RICA 43 CUBA 292	DOMINICA 18 GRENADA 24 GUYANA 26 HONDURAS 80 NICARAGUA 49 PANAMA 21 PARAGUAY 17 SAINT KITTS AND NEVIS 7	SAINT LUCIA 4 SAINT VINCENT AND THE GRENADINES 16 SURINAME 15 TRINIDAD AND TOBAGO 175 URUGUAY 19 VENEZUELA 925

Natives of the following countries were not eligible to participate in DV-2012: Brazil, Canada, China (mainland-born, excluding Hong Kong S.A.R. and Taiwan), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, the Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
(Source: U.S. State Department Visa Bulletin – September 2011)