Articles Posted in Removal of Conditions

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Return of Unselected H-1B Petitions

H-1B cap-subject petitions that were not selected in the fiscal year 2019 visa lottery have been returned to unlucky applicants. If you filed a petition between April 2 and April 6 and you did not receive a receipt notice for your application, you will be receiving your returned petitions in the mail by August 13. If you do not receive a returned petition by this date, you should contact USCIS.

Updated NTA Policy

On June 28th USCIS issued a policy memorandum providing updated guidance for the referral of cases and issuances of notices to appear (NTAs) in cases involving inadmissible and deportable aliens. The policy memorandum outlines the Department of Homeland Security’s priorities for removal as well as guidelines for referring cases and issuing NTAs.

Under the updated policy the following classes of aliens are prioritized for removal, aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal,” as well as alienswho, regardless of the basis for removal:

(a) Have been convicted of any criminal offense;

(b) Have been charged with any criminal offense that has not been resolved;

(c) Have committed acts that constitute a chargeable criminal offense;

(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e) Have abused any program related to receipt of public benefits;

(f) Are subject to a final order of removal, but have not departed; or

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security”

Today, USCIS announced that it is postponing implementation of this policy guidance because operational guidance has not yet been provided to immigration officers. The policy memorandum gave USCIS 30 days to implement proper protocols for NTA issuance consistent with the updated policy memorandum. We will notify our readers once we receive information about when the NTA policy will be implemented.

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The United States Citizenship and Immigration Services (USCIS) has released a new policy memorandum that will have wide ranging implications for immigrants. Beginning September 11, 2018, USCIS will use their discretion to deny an application, petition, or request filed with USCIS without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if insufficient evidence is sent with the initial filing of the application or if the evidence provided does not establish the applicant’s eligibility for the benefit requested.

The new policy memorandum “Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)” supersedes the 2013 policy memorandum titled “Requests for Evidence and Notices of Intent to Deny” which previously governed an officer’s discretion to deny an application, petition, or request without first issuing a request for evidence. Previously, the 2013 memo required requests for evidence to be issued where the initial evidence was unsatisfactory or did not establish the applicant’s eligibility for the benefit requested.

As of September 11, 2018, USCIS now has the power to deny petitions lacking initial evidence without sending a Request for Evidence or Notice of Intent to Deny to cure the defect. This is bad news for applicants of immigrant and non-immigrant visa types, because applicants who have not provided sufficient evidence to USCIS to establish that they are eligible for the benefit requested can be denied without having the opportunity to cure the defect.

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In this post, we share with our readers the top five things you need to know before applying for the I-751 Petition to Remove Conditions on Residence.

  1. You must file the I-751 Removal of Conditions if you were granted Conditional Resident status (a 2-year green card) based on marriage to a U.S. Citizen or lawful permanent resident

A conditional permanent resident receives a green card that is valid for a 2-year period. Conditional permanent residence is given to foreign nationals who have been married for less than 2 years, on the day that the application for permanent residence was approved. Conditional permanent residents have “conditional” status instead of “permanent” resident status, because they must prove that they did not marry the US Citizen or LPR spouse solely to obtain an immigration benefit. These individuals must go through the additional hurdle of filing Form I-751 Petition to Remove Conditions on Residence to obtain a permanent resident card (10-year green card).

  1. You must file the I-751 petition in a timely manner

The I-751 Petition to Remove Conditions on Residence must be filed during the 90-day window immediately before the conditional residence will expire (see the conditional green card’s expiration date and subtract 90 days).

  1. Consequences of Failing to File

If you fail to remove your conditions before the 90-day window closes, you will automatically lose your permanent resident status on the second anniversary of the date you were granted conditional status. You are then subject to removal from the United States. You may only file an I-751 petition after the expiration date of your conditional residence if you demonstrate that your delay in filing the petition was due to extraordinary circumstances beyond your control

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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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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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In a recent blog post, we told you all about the I-751 Removal of Conditions Application. In this segment we will briefly cover the basics of the I-751 Removal of Conditions Application and what you can expect one you have filed the application with USCIS.

Overview: 

The I-751 Removal of Conditions Application is filed by conditional permanent residents who gained their ‘conditional’ permanent resident status, based on their marriage to a United States Citizen or Legal Permanent Resident. An easy way to know whether you have been given a conditional green card is by checking the abbreviations that appear on your green card under immigrant ‘category.’ If your green card contains the abbreviation ‘CR’ under the immigrant category, then you are a conditional permanent resident. Additionally, if your green card was granted for only a 2 year period, then you have received a conditional green card.

Who must file the Removal of Conditions Application?

It is important to understand who must file the Removal of Conditions Application. If you are still married to the same person through which you gained your ‘conditional’ permanent residence (2- year green card), and you wish to obtain a 10-year permanent green card, you must file an I-751 application for removal of conditions jointly with your spouse. If you have divorced your spouse, you may still apply for removal of conditions on your own, however you must provide substantial proof of bona fide marriage. Applications that are filed by the ‘conditional’ permanent resident alone, are called I-751 waiver applications. Regardless of whether you will be filing the I-751 application with your spouse, or filing the I-751 waiver application alone, applicants must be prepared to demonstrate that they entered their marriage in ‘good faith’ and not for the purposes of evading the immigration laws of the United States. In other words, the additional process to remove the conditions on your permanent residence, is a fraud prevention mechanism to safeguard against sham marriages.

The removal of conditions application must be filed only by those individuals who were given a two-year conditional green card by USCIS. USCIS issues 2-year conditional green cards to foreign spouses (and LPRs) who have been married to a U.S. Citizen for less than to two years, on the date that the green card application is approved. Foreign spouses who have been married to their U.S. Citizen spouse for more than two years, on the date the green card application is approved, receive permanent 10-year green cards, and do not need to apply for removal of conditions.

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