Green Card & Visa News » Uscis

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.

Form I-130 Filing Location Changes

Tushar Mathur — Tue, 27 Dec 2011 04:01:00 +0000

“WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) will change the filing locations for Form I-130, Petition for Alien Relative. Effective Jan. 1, 2012, domestic petitioners will mail their stand-alone I-130 applications to either the Chicago Lockbox or the Phoenix Lockbox, depending on where they reside in the United States. The new filing locations will be updated with the corresponding addresses on Jan. 1 on the Form I-130 Direct Filing Locations page. This effort will balance workloads between the two locations and provide more efficient and effective processing of Form I-130.

There will be no change in filing locations when submitting Form I-130 along with Form I-485, Application to Register Permanent Residence or Adjust Status. Individuals filing these forms together will continue to mail them to the Chicago Lockbox facility. Petitioners filing from overseas addresses in countries without USCIS offices will also continue to file at the Chicago Lockbox facility. Petitioners residing in a country with a USCIS office may send their I-130 forms to the Chicago Lockbox, or they may file their Forms I-130 at the international USCIS office having jurisdiction over the area where they live.”

Source: USCIS Website

H-1B Cap Reached for FY2012

Tushar Mathur — Thu, 24 Nov 2011 22:41:00 +0000

USCIS announced yesterday that the H-1B regular cap has been reached for FY2012. The final receipt date for H-1B petitions is November 22, 2011. Applicants who wish to apply for H-1B status must wait until April 1, 2012 to file a FY2013 petition that permits employment on October 1, 2012. Last year, the regular H-1B cap was reached on January 26, 2011.

Only 7,400 H-1B Visa Numbers Available for FY2012

Tushar Mathur — Mon, 07 Nov 2011 20:37:00 +0000

As of November 2, 2011, the USCIS announced that approximately 50,800 H-1B cap-subject petitions have been received. There are about 58,200 total regular cap visa numbers available after certain set aside usage, leaving only 7,400 visa numbers still up for grabs.

L-1 visa petitions for applicants starting a new U.S. office

Tushar Mathur — Wed, 02 Nov 2011 04:20:00 +0000

Immigration Act Section 101(a)(15)(L) allows a multinational company to temporarily transfer foreign nationals with management, executive, and specialized knowledge skills to the United States to continue employment with an office of the same employer. Petitioners seeking to classify foreigners as intracompany transferees must file an I-129 petition with a USCIS service center for a determination. There are many complicated issues involved in the adjudication of an L-1 visa petition. For examples, the petitioner must establish that there is a qualifying relationship between the U.S. business entity and the foreign operation which employs the beneficiary abroad; the foreign national must have been employed abroad by the related foreign entity for at least one of the last three years in an executive, managerial, or specialized knowledge capacity; the U.S. business and the foreign company must continue to do business in the U.S. and a foreign country, either directly or through a related business entity such a parent, branch, subsidiary, etc.

The L-1 visa category has been identified by the government as one with vulnerabilities. For example, in a 2006 report prepared by the Inspector General’s Office of the Department of Homeland Security, there were concerns raised about whether foreign nationals will be coming to the U.S. to perform the duties in an L-1 executive or manager capacity. The government was also concerned about the definition of “specialized knowledge” being too broad. Finally, the government found it difficult to verify a petitioner’s foreign operations and recommended measures to start investigations in foreign countries. Consequently, each L-1 petition is subject to very strict scrutiny by the USCIS.

For L-1A managers or executives who are transferred to the U.S. to start a new office, their visa applications are subject to even stricter examination by the adjudication officers. The government adjudicators often question the veracity of such petitions and issue lengthy requests for further evidence requiring the production of extensive amount of documentation such as lease agreements, company organizational charts, employee information and job duties, financial documents, business documents such as invoices and purchase orders, etc. Petitioners often find it difficult to respond to such requests because, by definition, a new office usually does not have a history of business transactions, a team of professional employees, or even a fixed office location. To the extent that the petitioner has the burden to provide the documentation required to establish eligibility for L classification, failure to satisfy a request for additional evidence often would lead to a denial of the petition.

The issue is further complicated by the modern-day technologies and different means of conducting business. It is often possible for a new business operation to take off without plenty of office space and a team of employees. All one needs is a telephone, a fax machine, a telephone and an internet connection. Many well-known U.S. corporations started humbly in the founder’s garage. When foreign companies start a new branch office in the U.S., oftentimes they want to keep costs and overhead low. Before there is sufficient business volume to justify further expansion, these companies are hesitant to hire a team of professionals or sign a long term lease for office and warehouse spaces. However, when an L-1 visa petition is adjudicated, these nuisances generally cannot be used as excuses for failure to produce the required documents.

The American Immigration Lawyers Association has brought these issues to the attention of the USCIS in a recent meeting, and the USCIS has agreed to take AILA’s recommendations into consideration. The USCIS also commented that each case will be adjudicated based on its particular set of facts. For example, the evidentiary requirements for a request of a one-year extension of L-1 status and a request for a two-year extension of status will be different. Similarly, the evidence required to approve an import-export business’ petition will also be different from the evidence required to approve a chemical manufacturing company. The USCIS is also currently reviewing and revising its templates for L-1 Requests for Evidence. It is hopeful that positive changes will be made soon. One important issue to note is that, it is not wise to exaggerate the expansion plans or inflate the projected business revenues in the initial petition, as the USCIS will hold them against the petitioner during the adjudication of a subsequent extension petition.

New Medical Examination Form I-693 must be used beginning January 1, 2012

Tushar Mathur — Tue, 01 Nov 2011 01:37:00 +0000

On Nov. 1, 2011, USCIS will introduce a new, more user-friendly version of the form used to report results of medical examinations for those seeking certain immigration benefits, Report of a Medical Examination and Vaccination Record, Form I-693. Civil surgeons completing medical examinations between Nov. 1 and Dec. 31, 2011, should use the new form dated 10/11/11. However, USCIS will continue to accept the previous version, dated 7/20/10, for examinations completed between Nov. 1 and Dec. 31, 2011. Beginning Jan. 1, 2012, civil surgeons must use the new version of the form.

Source: USCIS website, 10/28/2011

H-1B Cap Count Update

Tushar Mathur — Wed, 26 Oct 2011 13:14:00 +0000

As of October 21, 2011, the USCIS announced that approximately 46,200 H-1B cap-subject petitions have been received.

For advanced degree holders, USCIS has receipted 20,000 H-1B petitions.

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.

Eligibe Widows Must File Self Petition by October 28, 2011

Tushar Mathur — Mon, 19 Sep 2011 19:50:00 +0000

USCIS reminds certain eligible widows or widowers of deceased U.S. citizens to file their visa petitions by October 28, 2011 – the deadline imposed by the FY2010 DHS Appropriations Act. This Act, signed into law by the President on October 28, 2009, removed the requirement that the marriage must have existed for two years before the death of the U.S. citizen spouse in order for the surviving spouse to self-petition for lawful permanent residence status. The elimination of the so-called "widow penalty" also allows any minor children of the widow(er) to apply for status. However, the law imposed a two-year deadline to file the petition. Applicants whose U.S. citizen spouse died on or after October 28, 2009 will
have two years from the date of the citizen spouse's death to file a
Form I-360 petition. For whose applicants whose U.S. citizen spouse died before October 28, 2009, and if they did not have a Form I-130 visa petition pending on October 28, 2009, they must file the I-360 visa petition on or before October 28, 2011.

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.