Visa Lawyer Blog

Articles Posted in Permanent Residents

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For years you have 8276375308_d5f2721898_zput your trust in our office for all of your immigration needs and for that we thank you. We consider ourselves very fortunate to be able to serve you and your families. Throughout the years, we have helped thousands of immigrants from all over the world attain their American dream. Learning about their lives and their struggles has

always been an important part of our practice. Although many challenges lie ahead for immigration, we are confident that important changes will come about in the new year. Do not despair and know that our office will be with you every step of the way. We wish you and your families the happiest of holiday seasons.

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In this segment, we answer 5 of your most frequently asked questions received from our social media platforms and website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. Do you want us to answer your question in a future segment? Please email nathalie@h1b.biz. For more information on the services we offer please click here.

Immigrating a Foreign Spouse: Incorrect Filing of the I-130

Q: I am currently at an impasse with my wife’s immigration process. We have moved on to the NVC stage of the process, and they have notified us that they will tentatively schedule her for her immigrant visa interview in her home country, although she is currently in the US on an expired visa. Thus-far, her I-130 petition has been approved and they denied the I-129 because of the approval. How can I get the interview location changed to the US without paying for and submitting the I-485?

A: Thank you for your question. More information is needed from you to fully assess your wife’s case such as a complete copy of the I-130 petition that was filed with USCIS. It appears that at the beginning of her case you elected to begin consular processing to immigrate your wife to the United States, and she later traveled to the United States while her I-130 petition was pending with USCIS. As you know, the first step of the consular process to immigrate a foreign spouse, requires you to file the I-130 petition for alien relative. This brings us to the main problem. The I-130 petition is the petition that determines where your wife will be interviewed, whether it be for adjustment of status in the United States, or to obtain an immigrant visa. In other words, the I-130 petition is intimately tied to the location where she will have her interview. On Part C. Item number 22 of the I-130 petition, USCIS specifically asks you to provide complete information regarding whether your relative is in the United States and will apply for adjustment of status, or whether your relative is not in the United States and will instead apply for a visa abroad at an American consular post or embassy abroad. If you responded that your relative was not in the United States and would apply for an immigrant visa abroad at the time of filing, it would be a very rare circumstance that USCIS would allow a change of venue for her interview.

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The Department of Homeland Security is expected to publish a final rule tomorrow November 18, 2016 benefitting EB-1, EB-2, and EB-3 employment-based immigrant workers and highly-skilled nonimmigrant foreign workers. The final rule is effective January 17, 2017. The final rule will streamline the process for employment based sponsorship of nonimmigrant workers for lawsuit permanent resident status (LPRs), increasing job portability, and promoting stability, flexibility, and transparency in the way DHS applies its policies and regulatory practices to these programs. These changes were proposed in order to better equip U.S. employers to employ and retain highly skilled foreign workers who are the beneficiaries of employment-based immigrant visa petitions known as Form I-140 petitions. The new rule will allow foreign workers to have more flexibility, and affords workers the opportunity to further their careers by accepting promotions, giving them the freedom of being able to change positions with current employers, change employers, or pursue other employment.

The final rule conforms with longstanding policies and practices in accordance with the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). The final rule seeks to further enforce the principles embodied in these pieces of legislation by providing nonimmigrant workers who have been sponsored for permanent residency based on the filing of an I-140 petition, greater flexibility and job portability, while expanding the competitiveness of American employers, boosting the U.S. economy, and protecting American workers. The final rule also clarifies and improves DHS policies and practices outlined in policy memoranda and precedent decisions of the Administrative Appeals Office. The final rule seeks to clarify regulatory policies in order to provide greater transparency to stakeholders. The final rule also clarifies interpretative questions related to ACWIA and AC21.

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In this post we bring you your daily dose of immigration updates. For more information on the immigration services we provide please visit our website. For a free first legal consultation please contact our office. It is our pleasure to accompany you on your immigration journey.

USCIS extends TPS Designation for Nepal for 18 months

The Secretary of Homeland Security recently announced that Temporary Protected Status (TPS) for eligible nationals of Nepal will be extended for an additional 18 months, beginning December 25, 2016 through June 24, 2018. Eligible TPS applicants must either be foreign nationals of Nepal or habitually resided in Nepal. DHS will be extending current TPS Nepal Employment Authorization Cards (EADs) with a December 24, 2016 expiration date for an additional 6 months, valid through June 24, 2017.

For more information regarding TPS for Nepal please click here. For information about the TPS program please click here. Employers interested in verifying or reverifying the employment eligibility of employees who are TPS beneficiaries, may click here for more information.

EADs Extended 6 Months for Guinea, Liberia and Sierra Leone TPS Beneficiaries

Current Beneficiaries of the Temporary Protected Status (TPS) program for the designations of Guinea, Liberia, and Sierra Leone have had their TPS status extended for a period of 6 months, to expire on May 21, 2017. The Department of Homeland Security authorized this temporary extension to allow beneficiaries to make an orderly transition out of the United States, before termination of their TPS status on May 21, 2017. Current beneficiaries of the TPS program from these designations will automatically retain their TPS status until this date, and the validity of their current Employment Authorization Cards (EADs) will be extended through May 20, 2017.

Click here for more information about the 6-month extension of orderly transition before termination of TPS designations for Guinea, Liberia, and Sierra Leone. For general information about the TPS program please click here.

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For persons who have entered the United States illegally or who have accrued unlawful presence after having overstayed their visa, the possibility of obtaining lawful permanent residence (a green card) is very limited. In the United States there are generally two ways to adjust status to permanent residence. With few exceptions, a green card may generally be obtained through employment-based sponsorship, or family sponsorship based on a qualifying family relationship, such as a U.S. Citizen or Legal Permanent Resident relative. Unlawful presence is a very serious immigration offense that is subject to punishment depending on the amount of time a person has accrued unlawful presence in the United States.

Undocumented immigrants who accrue unlawful presence in the United States, and subsequently leave the country, and attempt to re-enter the United States lawfully, may be subject to either a 3- or 10-year bar, based on the amount of time they have accrued unlawful presence in the United States. Specifically, under the Immigration and Nationality Action Section §212(a)(9)(B)(i)(I) a person who has accrued more than 180 days of unlawful presence in the United States, is subject to a 3-year bar automatically triggered once the person departs the United States. The bar would thereby prevent a person from being re-admitted into the United States, depending on the amount of time they were previously unlawfully present in the country. Similarly, under the Immigration and Nationality Act §212(a)(9)(B)(i)(II), a person who has accrued one year or more of unlawful presence in the United States, is subject to a 10-year bar preventing a person from being re-admitted to the United States, once they have departed from the United States.

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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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In this informational post we discuss the I-130 Consular Process for spouses. Consular processing refers to the process by which a U.S. Citizen immigrates their foreign spouse to the United States from abroad. Depending on the foreign spouse’s country of residence, and the volume of applications processed by USCIS, the National Visa Center, and the U.S. Consulate or Embassy where the foreign spouse will have their immigrant visa interview, the process to immigrate a spouse to the United States can take anywhere from 8 to 12 months. Consular processing is a complicated process. It is recommended that applicants obtain the assistance of an experienced attorney to file this type of application.

What is the first step involved in the process?

The first step involves filing the I-130 Petition for Alien Relative. This petition establishes that a relationship exists between the U.S. Citizen and intending immigrant. This petition thus is used for family-based immigration to the United States. A separate I-130 must be filed for each eligible relative that will immigrate to the United States including minor children of the foreign spouse. The filing and approval of the I-130 is the first step to immigrate a relative to the United States. Because this petition is filed by the U.S. Citizen petitioner, the foreign spouse does not need to wait until a visa number becomes available before applying for an immigrant visa at a U.S. Consulate/Embassy abroad. By contrast, if the petitioner is not a U.S. Citizen and is instead a Lawful Permanent Resident, an immigrant visa is not immediately available to the foreign spouse. Due to this, the foreign spouse must wait until their priority date becomes current according to the visa bulletin issued by the Department of State. The I-130 is accompanied by various supporting documents mostly biographical in nature. These documents include the signed forms, the filing fees, passport photographs of the petitioner and beneficiary, the petitioner’s proof of citizenship, a copy of the beneficiary’s passport ID page, copy of their birth certificate with a certified translation, and a copy of the marriage certificate. Once these documents have been compiled, the applicant mails them to USCIS for approval. USCIS takes approximately 4 months to process and approve this application. This time frame will depend on the volume of applications being processed by USCIS at the time of filing.

The National Visa Center Stage

Once the I-130 petition has been approved, USCIS will mail the petitioner a receipt notice known as the I-797 Notice of Action. This Notice of Action serves as proof that the I-130 petition has been approved, and more importantly indicates that the petition will be forwarded to the Department of State’s National Visa Center within 30 days. The National Visa Center is a government agency that conducts pre-processing of all immigrant visa petitions that require consular action. The National Visa Center requires the applicant to send various documents, before the application can be sent to the United States Consular unit where the foreign spouse will attend their immigrant visa interview. The NVC determines which consular post will be most appropriate according to the foreign spouse’s place of residence abroad, as indicated on the I-130 petition. Once the NVC has received all documents necessary to complete pre-processing of the immigrant application, the case is mailed to the consular unit abroad. From the date the I-130 has been approved, it takes approximately 30-45 days for the National Visa Center to receive the application from USCIS and begin pre-processing.

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In this segment, we answer 5 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. Do you want us to answer your question? Please submit your questions to us through our website, or our Facebook page. For more information on the services we offer please click here.

The Affidavit of Support: Using Assets to Supplement Income

Q: I will be petitioning my spouse for permanent residence soon and have a question about the affidavit of support. If I do not have the support of a joint sponsor and my income does not meet 125% of the federal poverty line, can I use my assets?

A: Yes, you may use your assets to supplement your income if your total income does not meet the income requirements of the 2016 HHS poverty guidelines according to your household size, as specified by the charts below. If your total income falls short, you may submit evidence to demonstrate the value of your assets, or the sponsored immigrant’s assets, and/or the assets of a household member with their consent. Not only can the assets of the petitioner, immigrant, or household member be used to supplement any deficient income, but the assets of these persons can be combined to meet the necessary financial requirement. In order to use assets, the total value of the assets must equal at least five times the difference between your total household income amount and the current Federal Poverty Guidelines for your household size. An exception exists for U.S. citizens sponsoring a spouse or minor child. In this case, the total value of the assets must only be equal to at least three times the difference. Not all assets may be used to supplement income. Assets that can be converted to cash within one year without hardship or financial harm may only be used to supplement income. The owner of the asset must provide a detailed description of the asset (if the asset is property, an appraisal can be included or online listing from a reputable website showing the estimated value of the asset), proof of ownership of the asset (title, deed, etc.), and the basis for the owner’s claim of its net cash value. If you are using your home as an asset, you must use the net value of your home (the appraised value minus the sum of all loans secured by a mortgage, trust deed, or other lien on the home). You may use the net value of an automobile only if you can show that you own more than one automobile, and at least one automobile is not included as an asset. Other examples of typical assets used to supplement income include property, 401k, IRA, mutual investment fund, etc.

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On September 21, 2016 the United States Citizenship and Immigration Services (USCIS) posted the adjustment of status filing dates for October 2016.

If you are waiting to apply for permanent residence based on an approved family-sponsored petition (I-130) or based on an approved employment-based petition (I-140), USCIS has advised that you refer to the ‘Dates for Filing Applications’ chart on the October Visa Bulletin to determine when to file your application for permanent residence according to your priority date (the date when your relative or employer properly filed your immigrant visa petition with USCIS) and your preference category. Generally, applicants who have filed the immigrant petition and have been approved, must wait in line until an immigrant visa becomes available, before seeking adjustment of status to permanent resident. This is because availability of immigrant visas for certain classes of immigrants are limited. These preference categories appear in the Visa Bulletin, as well as the number of visas available for each preference category.

Note: For employment-based petitions if a labor certification is required to be filed with your immigrant visa petition, the priority date is the date the labor certification application was accepted for processing by the Department of Labor.

What is the Visa Bulletin and the Dual Chart System?

Every month, the Department of State releases a monthly Visa Bulletin which provides estimates on immigrant visa availability according to family-sponsored and employment-based preference categories. As you may recall, in September of last year, USCIS introduced a new chart called the ‘Dates for Filing Applications’ chart in addition to the ‘Application Final Action Date’ chart. Together this dual chart system governs when applicants may file their applications for permanent residence according to visa availability, the applicant’s preference category, and the date of filing (priority date).

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In this post we bring you exciting news about the 2018 Diversity Immigrant Visa Program also known as the “green card lottery” for eligible foreign nationals. Participants in the Diversity Immigration Visa Program will have a chance to win one of 50,000 available visas to immigrate to the United States. Winning entries will be selected at random via a computer-generated drawing. Only foreign nationals of countries with historically low rates of immigration to the United States may apply for the program; please see the list of eligible countries below. The entry period for the 2018 Diversity Immigrant Visa Program (DV-2018) will open between Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 4, 2016, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 7, 2016. Entries must be submitted electronically on the Department of State website for the DV-2018 fiscal year. 

Only one entry may be submitted for each person during this registration period. Individuals who have submitted more than one entry per fiscal year will be disqualified. Once the registration period has ended the Department of State will use their computer software technology to detect multiple entries in the system. Applicants who have submitted multiple entries will be disqualified. There is no cost to register for the program and submit an entry for the diversity visa program. However, if accepted applicants will incur any visa expenses if residing abroad, and the filing fee for the green card application (currently $1,070). Once you have registered and submitted your entry for 2018-DV Program, you must check the status of your entry by visiting the Department of State website. The U.S. government will NOT notify you directly if you have been selected for the 2018-DV Immigrant Visa Program. It is your responsibility to check whether you have been selected.

What is the Diversity Immigrant Visa Program?

The Diversity Immigrant Visa Program is administered by the United States Department of State each fiscal year, and is a program that was made possible by Congress with the passage of section 203(c) of the Immigration and Nationality Act. Section 203(c) of the INA designates visas for a special class of immigrants referred to as “diversity immigrants.” These immigrants will have the unique opportunity to immigrate to the United States on the basis of this special program. For fiscal year 2018, 50,000 visas will be allocated toward the diversity immigrant visa program. If you are residing abroad at the time you are selected for the diversity immigrant visa program, you will be able to immigrate to the United States through consular processing. This process requires you to submit a DS-260 Immigrant Visa Electronic Application and schedule an interview appointment at a U.S. consulate near you. There you will be able to obtain issuance of your immigrant visa. If you are residing in the United States legally (on a temporary nonimmigrant visa type) at the time of your selection, you may submit your adjustment of status application to USCIS within the United States.

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