Articles Posted in I-131

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Today, October 24, 2016 the Department of Homeland Security published the final rule increasing fees for certain immigration and naturalization petitions processed by U.S. Citizenship and Immigration Services (USCIS). Overall the Department of Homeland Security increased filing fees for certain petitions by an average of 21 percent. The new fees will be enforced by USCIS beginning December 23, 2016. The fee schedule has been adjusted following the agency’s decision to conduct a comprehensive review of filing fees for fiscal year 2016/2017. USCIS determined that an adjustment in the filing fees would be necessary in order for USCIS to recover costs for services expended and maintain adequate service. The proposed fee schedule was first published on May 4, 2016. The final rule clarifies that all persons applying for immigration benefits may be required to appear for biometrics services or an interview, and thus must pay the biometrics services fee accordingly.

EB-5 Investor Visa Program

The EB-5 Immigrant Investor Visa Program will be most heavily impacted by the new fee schedule. The new filing fee for Form I-924, Application for Regional Center under the Immigrant Investor Pilot Program, will increase by a rate of 186% requiring Regional Centers seeking designation under the program, to pay a filing fee of $17,795 instead of the current rate of $6,230. Regional Centers will be required to pay a $3,035 annual fee to certify their continued eligibility for the designation.

The filing fee for the I-526 Immigrant Petition by Alien Entrepreneur, an application associated with the EB-5 visa program, will increase to $3,675, a 145% increase up from the current rate of $1,500. The filing fee for an investor’s petition to remove conditions on residence remains unchanged.

Naturalization

USCIS has established a three-tiered fee schedule for naturalization applicants filing Form N-400 Application for Naturalization. First, the fee schedule includes a standard filing fee for most applicants, from a rate of $595 to $640. Second, DHS has established a reduced fee of $320 for naturalization applicants whose household income is greater than 150% but less than 200% of the Federal Poverty Guidelines. Third, there will be no filing fee for naturalization applicants who are members of the military, applicants with approved fee waivers, and others who may qualify for a fee waiver according to sections 328 or 329 of the Immigration and nationality Act (INA).

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We are pleased to announce that USCIS will adopt a new parole policy, at the recommendation of the Ombudsman’s office, for U visa principal petitioners and their derivative qualifying family members residing abroad, who are currently on waiting lists for the availability of U Visas. As a result of this new policy, eligible applicants will be able to seek parole into the United States and await availability of their U visas from the United States, instead of waiting from abroad.

The U visa was first implemented with the passage of the Victims of Trafficking and Violence Protection Act signed into law by Congress. This piece of legislation gave USCIS the authority to implement a special nonimmigrant visa classification known as the U visa. Presently, the U nonimmigrant visa is available to foreign nationals who have either been a witness to a crime in the United States, or who have suffered substantial mental or physical abuse as a victim of a crime that occurred in the United States. The U visa in effect creates a special class of nonimmigrants who may legally reside in the United States for the purpose of assisting law enforcement, or government officials, in ongoing investigations for the prosecution of certain crimes. Unfortunately, there is a congressional limitation on the number of U visa’s that may be issued to principal U visa applicants. That limit is currently capped at 10,000 visas on an annual basis.

Once the 10,000 visa cap has been exceeded, U visa nonimmigrants are forced to remain abroad, and are placed on a waiting list. In order to expedite their entry to the United States, applicants must go through the extra step of applying for humanitarian parole from abroad in order to enter the United States. Such victims are often in danger or in vulnerable situations in their home countries. Most importantly their key testimony and cooperation is of no use to the United States if they are residing abroad.

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Many of our clients are unaware that they may be eligible to receive a fee waiver upon demonstration of a clear financial need. Although USCIS receives much of its funding from the application and petition fees they charge to applicants, the service understands that applications can be very costly for applicants, and that some applicants will not be able to pay the necessary filing fees. Although not all applications and petitions are eligible to receive a fee waiver there are many petitions that qualify.

Who may apply for a fee waiver?

A fee waiver request may be submitted by persons who are unable to pay the required filing fees or biometric service fee(s) for any application or petition that is eligible to receive a fee waiver. In order to receive a fee waiver, applicants must demonstrate that they are unable to pay the filing fees by providing documented evidence of that need with the fee waiver request Form I-912. A fee waiver request, Form I-912, must be filed with all applications and petitions for which you are requesting a fee waiver.

You can request a fee waiver if:

  1. The form you are filing is eligible for a fee waiver (refer to list below) and
  2. You can provide documentation showing that you qualify based upon at least one of the following criteria:
  • You, your spouse, or the head of household living with you, are currently receiving a ‘means-tested benefit.’
  • Your household income is at or below 150 percent of the Federal Poverty Guidelines at the time you file.

You can verify whether your income is below 150 percent of the Federal Poverty Guidelines by calculating your household size and household income, and reviewing the I-912P 2016 Federal Poverty Guidelines.

For example, if you are living in the state of California and you have a household size consisting of three people (you, your husband, and your child) and your total income is at or below $30, 240 you may file a fee waiver request by providing evidence that your income falls below the federal poverty guideline based on your household size and place of residence.

  • You are currently experiencing financial hardship that prevents you from paying the filing fee, including unexpected medical bills, emergencies, or other hardship.

Note: You are only required to file one Form I-912 for all family-related applications or petitions you would like to qualify for a ‘fee waiver’ at the same time.

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Our clients often ask us what the difference is between adjusting their status within the United States versus applying for a green card at a United States consulate abroad. In order to adjust your status to permanent resident within the United States by filing Form I-485, you and your spouse must be living inside of the United States at the time of filing. The intending immigrant must also have entered the United States legally in order to adjust status within the United States, although there are few exceptions (as is the case of individuals who qualify for 245i). This means that generally, in order to qualify for adjustment of status, you must have been inspected by a U.S. Customs official at a United States port of entry. As part of the Adjustment of status process, the green card applicant must be able to prove that they were inspected upon entry by showing their I-94 arrival/departure record. The I-94 is a small white paper that is placed in the passport containing a stamp of admission with the date of entry, place of entry, the person’s name, I-94 number, and other important details.

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Sample I-94 arrival/departure record

If you did not receive a paper I-94 in your passport, you may obtain your I-94 electronically by visiting the DHS website.

Consular processing on the other hand is an option that is typically utilized for spouses of US Citizens residing abroad and/or foreign spouses who have never visited the United States, do not have a United States visa, or cannot obtain one, because they are already married to a US Citizen. Foreign spouses who are obligated to travel frequently such as businesspersons may also prefer to obtain an immigrant visa through ‘consular processing’ because this process does not prohibit international travel. Adjustment of status applicants on the other hand are prohibited from traveling internationally once the I-485 green card application has been filed, unless they have received travel permission from USCIS known as an advance parole document. If the applicant travels without this advance parole document, the I-485 application will be considered abandoned.

Advance Parole for Adjustment of Status Applicants

In order to receive this advance parole document, the applicant must file Form, I-131 Application for Travel Document at the same time as Form, I-485 in order to return to the United States after temporary foreign travel. If the applicant wishes to apply for a work permit they must also file Form, I-765 Application for Employment Authorization. There is no additional fee for the I-131,765 applications if the applicant has a pending I-485 application with USCIS. The I-131,765 applications take approximately 90 days to process from date of filing and culminate in a travel/work permit combo card known as the EAD (Employment Authorization Document). This document allows the applicant to work, travel, obtain a SSN number, and driver’s license. Consular Processing applicants do not receive any travel or employment authorization and cannot obtain a driver’s license or SSN until they have received their green card once they enter the United States with an immigrant visa.

Adjustment of Status Benefits

There are many benefits that come with adjusting your status within the United States however to qualify you and your spouse must be living in the United States and you must have been inspected upon entry to the United States (with few exceptions), otherwise you are not eligible to apply for adjustment of status within the United States. If you have committed any immigration violations or have a serious criminal history, you must consult an attorney.

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Before filing your green card application, it is important for you to carefully consider several important factors that may limit your ability to obtain employment in the United States and restrict your international travel. If you will be filing your green card application in the near future, you need to be prepared to remain in the United States for a period of at least 90 days, from the date of filing of your green card application. Applicants must also be aware that they will not receive authorization to work in the United States until this 90-day period has passed. Limited exceptions exist which may allow an applicant to expedite the adjudication process of the employment and travel authorization applications which we will discuss below.

Why the 90-day restriction period?

As part of the green card application, the applicant may file the I-765 Application for Employment Authorization and the I-131 Application for Travel Document at no additional cost. The I-765 and I-131 applications result in the issuance of a one-year temporary employment and international travel authorization card (EAD), while the green card application is being adjudicated by USCIS. It takes on average 90 days for the EAD card to be issued, from the date of filing of the green card application. This ultimately means that once you apply for permanent residence, you will not be able to seek employment or travel outside of the country until the EAD card is issued to you within 90 days. Once the green card application has been filed with USCIS, the applicant is restricted from any international travel. If the applicant travels without authorization, USCIS will consider the applicant’s green card application ‘abandoned.’ An applicant may only travel internationally if they have received a re-entry permit issued by USCIS known as an ‘advance parole’ document. The ‘advance parole’ notice will appear on the front of the EAD card itself signifying that the applicant is authorized to travel internationally using the card.  The ability to re-enter the United States after returning from temporary foreign travel is ‘discretionary.’ This means that even if you have been issued an EAD card that allows you to travel, it will ultimately be up to the customs official to admit you into the United States.

Consider the alternatives

Before applying for your green card you should carefully consider whether these travel and employment restrictions will have a significant impact on your lifestyle. If the travel restrictions are concerning to you, it may be a more beneficial option for you to apply for an immigrant visa from a U.S. Consulate abroad. There are no travel restrictions for applicants who apply for immigration benefits from abroad. Likewise, if you are concerned that you will not receive employment authorization immediately, it may be worth considering applying for a dual intent work visa first to cover any gaps in employment. There are limited work visa categories that allow for dual intent, or the intent to have a temporary visa status at the same time as having the intent to remain permanently in the United States. If this is the case, you should consult with an attorney to discuss your options.

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What is Adjustment of Status?

Adjustment of Status is the process by which a foreign national can change their immigration status from a temporary nonimmigrant to an immigrant (permanent resident), while in the United States. There must be a basis under which a foreign national can apply for adjustment of status. In most cases the foreign national must have an immediate relative who is a U.S. Citizen or have an employer willing to file an immigrant petition on their behalf.

Generally, a foreign national can apply for adjustment of status, if they were inspected by a customs official at a United States port of entry and admitted or paroled into the United States, and meets all requirements to apply for a green card (permanent residence). The Immigration and Nationality Act (INA) allows an eligible foreign national already living in the United States with their U.S. Citizen spouse, to obtain permanent resident status without having to return to their home country to apply for an immigrant visa at a United States consulate abroad. Spouses of U.S. Citizens are eligible for adjustment of status to permanent residence once the US Citizen spouse files a petition on their behalf called the I-130 Petition for Alien Relative. The I-130 Petition for Alien Relative is typically filed at the same time (concurrently) as the I-485 Application to Register Permanent Residence or Adjust Status. For immigration purposes, the intending immigrant (or foreign national) is referred to as the ‘beneficiary’ of the application, while the U.S. Citizen spouse is referred to as the ‘petitioner’ of the I-130 application. The petitioner allows the beneficiary to apply for adjustment of status on the basis of their marital relationship (established with the filing of the I-130 Petition).

In general, most immigrants become eligible for permanent residence once an immigrant petition is filed on their behalf by either a qualifying family relative (I-130 Petition) or through an employer (I-140 Petition) although there are special categories of green card applicants that exist. Unlike distant relatives of U.S. Citizens and alien workers, spouses and immediate relatives of U.S. Citizens are not subject to any visa limitations. This means that they do not need to wait in line to receive permanent residence; an immigrant visa is immediately available to them and there are no quotas. The process of immigrating a foreign spouse through adjustment of status takes approximately 4-6 months depending upon the volume of adjustment of status application being processed by USCIS at the time of filing, and the amount of applications waiting in line for an interview at your local field office.

Spouses of U.S. Citizens residing abroad are not eligible for adjustment of status

For spouses of U.S. Citizens residing abroad, adjustment of status is not an option because the intending immigrant and U.S. Citizen spouse must be living together in the United States in order to apply. Instead, spouses of U.S. Citizens who are living abroad must resort to consular processing, in order to obtain an immigrant visa and permanent residency. Consular processing is also utilized to immigrate a foreign spouse who is ineligible to adjust status, for example in the case where the foreign spouse entered the United States illegally.

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If you have filed your green card application with USCIS, you are probably asking yourself whether you can travel internationally (yes we mean Mexico too) while your application is in process. After all, filing the green card application is admittedly a stressful process for both the applicant and petitioner. Accomplishing this achievement is worth celebrating.  To reward yourself you may be aching to celebrate your newfound immigration status by going on holiday or taking that important business trip you and your business partners have been discussing.

Travel Authorization for Re-entry

Not so fast!! You cannot travel internationally unless you have received a travel authorization document from USCIS, known as an advance parole document. You are required to obtain such travel authorization if you seek to re-enter the United States after temporary foreign travel. To do so, you must file Form I-131 Application for Travel Document with USCIS. For applicants filing a green card application based on their marriage to a U.S. Citizen, the I-485 and I-131 application is typically filed concurrently. There is no fee for the I-131 application if it is submitted along with Form I-485. It takes approximately 90 days, from the date the I-131 application is received, for USCIS to issue this travel authorization. Once the travel authorization is received, it would no longer be worth traveling outside of the country, because applicants typically receive their “interview notice” in the mail during this time frame. The interview notice will contain the date, time, and location of the green card interview and require the applicant to be physically present in the United States. In emergency situations, it is possible to reschedule the green card interview although this will obviously delay receipt of the green card.

Emergency Expedite Requests

Although it is possible to request an expedited advance parole document in emergency situations, there are important reasons why you should not do so. Firstly, the process for expediting an advance parole document is extremely difficult. You must have a legitimate reason for making an expedite request. Attending a business conference, your best friend’s wedding, or going on your honeymoon are not legitimate reasons for making an expedite request. Even in emergency situations such as the death or serious illness of a relative, we have seen immigration officers repeatedly deny expedite requests. Secondly, you are required to be physically present in the United States in order to attend your biometrics appointment for fingerprinting (within 3-4 weeks of filing the green card application) and later to attend your in person green card interview before an immigration officer (within 3-4 months of filing your application).

Taking these factors into consideration, it is important for applicants to plan accordingly. Never make any travel commitments until you have at least received your travel authorization/advance parole document from USCIS. Keep in mind that you will be required to return to the United States in order to attend your in person green card interview. If you do not appear on your scheduled interview date your application will be denied. Do not let this happen to you.

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