Visa Lawyer Blog

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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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New Jersey’s 4th largest city, Elizabeth, is soon to become one of several municipalities in New Jersey to offer photo identification cards for the undocumented immigrant population, and other underserved members of the community such as homeless persons. On Tuesday, city council members voted unanimously to approve a city ordinance benefitting undocumented immigrants who do not have any form of photo identification. A second and final vote on the ordinance is expected next month. According to the U.S. Census nearly half of the residents of Elizabeth, New Jersey are foreign-born persons. Elizabeth is only one of many cities in New Jersey that has considered adopting a municipal identification card program. Recognizing that New Jersey is home to a large population of undocumented immigrants, various cities in New Jersey already have a municipal identity card program incorporating the undocumented immigrant population into society. New Haven, Newark, Roselle, Perth Amboy, Highland Park, Asbury Park, Trenton, and many other cities have adopted some form of municipal identification card.

The photo identification cards will provide basic information including the person’s name, date of birth, address, and an expiration date. Only persons 14 years of age or older will be able to obtain these photo identification cards. Although these cards will not be a form of federal identification, and do not confer any type of immigration benefit, or employment authorization, having access to a photo identification is very important for the undocumented immigrant population for various reasons. First, it is nearly impossible to obtain certain benefits without a valid photo identification. For example, many undocumented immigrants are unable to open a bank account, access basic government services, enter government buildings, fill prescriptions, obtain medical care, enroll in adult courses, or receive state benefits they are entitled to, but cannot receive without presenting a valid photo ID. Second, this measure will be especially important for persons who cannot obtain a driver’s license, passport, or other government issued ID by any other means. Third, because many undocumented immigrants cannot open a bank account since they do not have a form of identification, undocumented persons are often targeted as walking ATMs because they carry large amounts of cash.

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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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Yesterday, October 19th the third and final Presidential debate took place in Las Vegas, Nevada. This was the last opportunity Presidential candidates, Donald J. Trump, and Hillary R. Clinton, had to present their positions on various different issues, and make a final attempt to gain the support of undecided voters. The debate has left much to talk about, while many questions still remain unanswered. The moderator of the debate, Chris Wallace, of FOX news questioned the candidates on various different topics ranging from the Supreme Court nomination, economy, foreign policy, and more importantly the candidates’ positions on immigration reform.

On the subject of immigration, the moderator introduced his question on immigration by providing an overview of each candidate’s positions on immigration. Wallace discussed the fact that throughout his campaign, Donald Trump has staunchly advocated for mass deportations and the building of a more secure border, which he believes will successfully deter undocumented immigrants, criminals, and terrorists from entering the United States.

By contrast, Wallace highlighted the fact that Hillary Clinton has offered no specific plan on how she would secure our southern borders, where there is currently a massive influx of immigrants, specifically unaccompanied children from Central America, seeking refuge in the United States. Wallace reiterated Hillary Clinton’s commitment to offer a comprehensive immigration reform package within the first 100 days she is in office that includes a pathway to citizenship for undocumented immigrants, with proven ties to the United States.

Each candidate was asked to discuss why their immigration policy is the best, and why their opponent is wrong. Donald Trump was given the first opportunity to respond. Trump opened the conversation on immigration by taking the position that providing amnesty for undocumented immigrants would be a ‘disaster’ for various different reasons. First, he stated that it would be unfair for undocumented immigrants to be given a path to citizenship, while immigrants wishing to enter the United States legally, are forced to wait many years to obtain permanent residence. Second, he emphasized that securing our country’s borders is his number one priority. Trump bolstered his claim that strong borders are necessary, by referring to mothers he had met on the campaign trail, whose children were brutally killed by people he claims entered the country illegally. He also stated that for the first time ever he has been endorsed by 16,500 Border Patrol Agents, as well as ICE who share in his belief that our country needs strong borders. Third, Trump claims that strong borders are necessary to deter the thousands of people who are coming into the country illegally, and to prevent drugs from pouring into the United States. Lastly, he stated that the war on drugs is the biggest problem the United States is facing today, thus in his view this presents an even greater obligation to secure our borders. He blamed the Obama administration for its failure to deter illegal immigration, illicit drugs from coming into the United States, and for allowing criminals to enter the United States.

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In this segment, we bring you the latest immigration news. This month, the U.S. Department of Homeland Security released a status report on border security in the Southwestern border region. In other news we provide you with an update on the Proposed International Entrepreneur Rule, and finally we would like to remind our readers to tune into the final Presidential Debate on October 18th.

Department of Homeland Security Releases Report on Border Security for the Southwestern Border Region

On October 17, 2016 the Secretary of the U.S. Department of Homeland Security, Jeh Johnson, released a report on the state of border security in the Southwestern region of the United States for fiscal year 2016. The Secretary reported that the total apprehensions by border patrol on the southwestern border have increased, relative to the previous fiscal year. During fiscal year 2016 there were a total of 408,870 unlawful attempts to enter the United States border without inspection by a border patrol officer. Although the number of apprehensions during this fiscal year were higher than the previous year, the number of apprehensions in fiscal years 2013 and 2014 were much higher than fiscal year 2016.  Johnson also reported that illegal migration in this region has changed demographically. Today, there are fewer Mexican foreign nationals and adults attempting to cross the Southwestern border illegally. The problem now is that more families and unaccompanied children from Central America are making the dangerous trek from Central America to the United States, fleeing gang related violence, organized crime, and poverty. In 2014 for the first time in history, the number of Central Americans apprehended on the Southern border outnumbered Mexican nationals. The same phenomenon occurred during fiscal year 2016.

How is DHS dealing with the influx of undocumented immigrants from Central America?

DHS is struggling to deal with this humanitarian crisis. Thus far the United States has implemented an in-country referral program for foreign nationals of Honduras, El Salvador, and Guatemala. The program gives certain immigrants the opportunity to apply for refugee protection in the United States. DHS has also expanded the categories of individuals that may be eligible for the Central American Minors program, although adults may only qualify for this program if they are accompanied by a qualified child. The Government of Costa Rica and the United Nations High Commissioner for Refugees and the International Organization for Migration have developed a protection transfer agreement to relocate unaccompanied children and their families to safer regions. DHS was given $750 million in Congressional funds this fiscal year to provide support and assistance to this vulnerable population of migrants. Johnson recognized that there is much work to be done to secure and border, while at the same time addressing the need for comprehensive immigration reform.

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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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USCIS has announced that beginning October 5, 2016 the validity period for initial and renewal employment authorization cards (EADs) will be extended from the previous one-year validity period to a two-year validity period, for asylum applicants eligible to receive employment authorization. EAD applications pending as of October 5, 2016 and all EAD applications filed on or after October 5, 2016 will receive 2-year EAD cards.

Asylum applicants cannot apply for employment authorization with their initial asylum applications. Applicants with a pending asylum application, who have filed for asylum on or after January 4, 1995, must wait until at least 150 days have passed since filing of their asylum applications (not including any delays that were caused by them) before applying for employment authorization. Once at least 150 days have passed since filing of the asylum application, and provided the application is still pending with USCIS, applicants may apply for employment authorization by filing Form I-765 Application for Employment Authorization using the (c)(8) asylum classification. On average it takes approximately 90 days for the I-765 to be processed, and for the employment authorization card (EAD) to be mailed to the applicant. Once you receive the employment authorization card you may begin to work immediately. You may also obtain a driver’s license for the validity period of your employment authorization, and a social security number by presenting your employment authorization card at the DMV and SSA near you. There is no fee to apply for your first employment authorization card if your asylum application is pending with USCIS or you have been granted asylum. If you are applying for a renewal EAD card (it is not your first time receiving an EAD) your application is subject to the filing fee.

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On September 28, 2016 the Obama Administration published the presidential determination for refugee admissions for fiscal year 2017. For the upcoming fiscal year, the Department of State will authorize admission of up to 110,000 refugees in accordance with section 207 of the Immigration and Nationality Act 8 U.S.C. 1157. The numbers of available refugee admissions will be allocated on a regional basis to the following countries: Africa, East Asia, Europe and Central Asia, Latin America and the Caribbean, the Near East, and South Asia. The president stated in his memorandum that the number of refugee admissions has increased from previous years, due to national interest concerns and the need of humanitarian relief in these regions. Numbers are specifically allocated to refugees of special humanitarian concern to the United States. Fourteen-thousand of the one-hundred ten thousand refugee admissions will go toward an ‘unallocated reserve’ authorizing Congress to distribute unallocated admission numbers to regions where the need is necessary based upon humanitarian concerns. Any unused refugee admission numbers may be transferred between regions, if there is increased need for admission in that region or region(s).

The numbers for refugee admission by region are as follows:

Africa ……………………………………………………. 35,000

East Asia…………………………………………………. 12,000

Europe and Central………………………………………. 4,000

Latin America and the Caribbean …………………………5,000

Near East and South Asia…………………………………40,000

Unallocated reserve………………………………………. 14,000

In accordance with 8 U.S.C. 1101(a)(42) Congress is authorized to grant refugee admissions to the following persons, based on their country of nationality or habitual residence. Such persons are not subject to a numerical limit in order to qualify for refugee admission to the United States: persons in Cuba, Eurasia, the Baltics, Iraq, Honduras, Guatemala, El Salvador, and persons identified by a United States Embassy in exceptional circumstances.

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In this post, we discuss the latest immigration news beginning with the recent Congressional Approval of the Continuing Resolution Act that will allow funding to continue for the EB-5, Conrad 30, and special non-ministerial religious worker programs for fiscal year 2017. With the passage of this Continuing Resolution, these programs will remain afloat at least for the time being. On September 28, 2016 Congress averted a government shutdown by continuing funding for key programs with the passage of the Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act of 2017. This Act will extend the EB-5 Regional Center Program and EB-4 non-minister special immigrant visa program for religious workers until December 9, 2016. In terms of adjustment of status filing dates for employment-based preference categories, USCIS has announced that for the month of October, foreign nationals seeking to apply for employment-based adjustment of status (EB-1 to EB-4 preference categories) may do so by using the Dates for Filing Applications Chart of the October Visa Bulletin for 2016. EB-5 adjustment of status applicants must use the Final Action Dates chart of the October Visa Bulletin.

What does this mean?

The signing of the Continuing Resolution Act means that this year we will not be facing a government shutdown as in previous years. This is very good news given that the upcoming elections (both for the U.S. president and Congressmen and women) may have been a factor in Congress not being able to meet the deadline to continue government funding for these key programs. EB-5, Conrad, and non-ministerial religious worker programs will continue without interruptions since these programs are part of the CR.

What will happen after December 9, 2016?

On December 9th the government will be facing another deadline that will require Congress to continue funding these very important programs. If Congress does not meet the funding deadline for these programs through the passage of another Continuing Resolution or Omnibus package, the government could face another shutdown. This would take place after the elections, but before the new Congress is in session. If an Omnibus is passed, the possibility of reforms and/or changes to the EB-5, Conrad, or non-ministerial religious worker programs is worth noting. Recent controversies may lead to reforms in the EB-5 program although it is unlikely that major reforms and/or changes to the EB-5 program will pan out before the December 9th deadline.

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Here at the Law Offices of Jacob J. Sapochnick we like to celebrate our client’s successes. From our staff members to our attorneys, we are with you every step of the way on your immigration journey. Every client has a story, and it is these stories that inspire us to deliver the best service every day to achieve optimum results for our clients.

Several months ago a client visited our office after she received a denial for an N-400 application for naturalization that she had filed on her own early last year. Our client was an elderly woman seeking a waiver of the English language and Civics requirement of the N-400 application for naturalization on the basis of her disability. The issue in this case was that our client had various medical diagnoses that greatly impaired her cognitive abilities and by extension her capacity to learn. Due to these conditions, our client would not be able to successfully pass the English language and Civics component of the N-400.

In order to seek a waiver of the English language and Civics requirement, on the basis of physical or mental disability, Form N-648 must be properly completed by a licensed medical professional, who can attest to the applicant’s physical or mental disabilities. After consulting with the client and reviewing the paperwork that had been previously submitted to USCIS, we discovered that the Form N-648 was unsatisfactorily completed. The medical professional that had completed this form on our client’s behalf did not adequately explain the origin, nature, and extent of our client’s disability. The medical professional did not provide any documentation to support the explanation of our client’s medical condition, including such evidence as medically acceptable clinical or laboratory diagnoses to bolster the report. Most importantly, the medical professional failed to explain how the origin, nature, and extent of our client’s medical condition was so severe that they rendered her unable to learn or demonstrate English proficiency and knowledge of U.S. history and government.

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