Form I-864 and Public Charge

Form I-864 and Public Charge As a U.S. citizen, you should be prepared to prove that you meet the income requirement of a sponsor. When your parent has been scheduled for an immigrant visa interview with a consular officer overseas, or when your parent is about to submit an application for adjustment to permanent resident (Form I-485), you will need to complete an I-864 Affidavit of Support. The USCIS Form I-864 - Affidavit of Support is required for family-sponsored immigration. An affidavit of support is a guarantee to U.S. government that an immigrant will not become a public charge. The affidavit could be offered by the petition sponsor or someone who could provide financial assistance to the immigrant in the event that such help would be necessary. All petitioners, regardless of whether or not they have been working or living in the U.S. since the past three years, must submit a notarized Form I-864, Affidavit of Support, for the beneficiaries of the petitions. The determination of a possible public charge must be made in all cases. A public charge is defined as someone who cannot support him or herself, and may therefore become reliable on the adopted country - the United States. For more information, please see Form I-485 - Form I-864 and Public Charge

The Benefits and Conditions of K-1 Visa

The Benefits and Conditions of K-1 Visa The K-1 fiancée visa is a nonimmigrant visa which allows the fiancé or fiancée of a U.S. citizen to enter into the U.S. and get married to the U.S. citizen. The benefits of the K-1 visa include: 1) The K-1 fiancée visa generally has a shorter processing time compared to marriage-based immigration visa petitions; 2) The alien fiancée/fiancé can apply for a work permit by filing Form I-765 and engage in employment; 3) The children of alien fiancée/fiancé can accompany the alien to the U.S. on the K-2 dependent visa, as long as they are named in the fiancée visa petition. Until the marriage takes place, the alien fiancée/fiancé is considered a non-immigrant. The fiancée/fiancé may enter the United States only one time with a fiancée visa. If the fiancée/fiancé leaves the country before you are married, the fiancée/fiancé may not be allowed back into the United States without a new visa. If the marriage does not take place within 90 days, or the fiancée/fiancé marries someone other than the U.S. citizen filing the petition, the fiancée/fiancé will be required to leave the United States. If the fiancée/fiancé intends to live and work permanently in the United States, the fiancée/fiancé should apply to become a permanent resident after the marriage. If the fiancée/fiancé does not intend to become a permanent resident after the marriage, the new spouse must leave the country within the 90-day original non-immigrant admission. For more information, please see The Benefits and Conditions of K-1 Visa

The Family-Sponsored Immigration

The Family-Sponsored Immigration Family-sponsored immigration is to become a U.S. permanent resident through certain family relations. Normally, a U.S. citizen or legal permanent resident would file an immigration petition with the United States Citizenship and Immigrations Services (USCIS). The U.S. citizen or legal permanent resident is called the sponsor. The alien relative for whom the immigration petition is filed is called the beneficiary. A U.S. citizen or legal permanent resident can be the sponsor of a family-sponsored immigration petition. However, the sponsor has to meet certain requirements and legal obligations. The sponsor has to submit a legally binding affidavit of support for the beneficiary to USCIS, in which the sponsor guarantees to maintain the standard of living of the intending immigrant at a level not lower than 125% of the national poverty level. This obligation continues until the beneficiary has become a U.S. citizen, or has worked in the United States for 40 qualifying quarters. Spouses of U.S. citizens are eligible for permanent resident status as "immediate relatives". The process of completing and submitting an immigrant visa application for relatives can be confusing. As a U.S. citizen, you can submit an immigrant application if you have a close family relation, and you can sponsor the following family members: · Husband or wife; · Widow or widower of a U.S. citizen; · Brother or sister (including half-brothers and half-sisters); · Son or daughter (including illegitimate children); · Stepson or stepdaughter; · Stepparent of a U.S. citizen child; · Adopted son or daughter; · Adopted parent; · Father or mother; · Battered or abused spouse or child. For more information, please see Family-sponsored immigration

How to Conduct the PERM Labor Certification Recruitment Process

Question: My company needs to hire a Computer Engineer who is now a F-1 student, and will start the Labor Certification process for his Green Card application after his employment. Please let us know how to conduct the PERM Labor Certification recruitment process? and do we have to also post the job position in the Job Bank of State Labor Department? -------------------------------------------------------------------------------- Answer: The U.S. Department of Labor (DOL) has policies for the required PERM Labor Certification recruitment process for employers. The U.S. employers should use newspaper and 3 other forms for additional recruitments. Also, an employer should also post the job position in the Job Bank of its State Labor Department. In the recruitment process, the employer should respond to all applicants and their resumes properly. Also, the employer should have an appropriate candidate screening process and interview process. For more information, please see PERM Labor Certification Recruitment

Extraordinary Ability - EB1 Two-Step Adjudication Process

Question: I am a new Assistant Professor in a major research university of U.S. and I plan to apply for Green Card in both EB1 categories of EB1 Extraordinary Ability and EB1 Outstanding Researcher or Professor, by using your excellent Green Card DIY Application packages. Please let me know what is the "Final Merits Determination" in the EB1 two-step adjudication process? -------------------------------------------------------------------------------- Answer: For EB1 Extraordinary Ability Green Card application (EB-1A or EB1-EA) and EB1 Outstanding Researcher or Professor Green Card application (EB-1B or EB1-OR), the U.S. Citizenship and Immigration Services (USCIS) adjudicators are now using the two-step adjudication process, which uses the second step as the Final Merits Determination for each EB-1A and EB-1B green card application. The two-step adjudication process will have a final review of all submitted materials and all evidence to determine if an applicant can meet the overview requirements of "extraordinary" for EB1 Extraordinary Ability application, or if the applicant can meet the overview requirements of "outstanding" for EB1 Outstanding Researcher/Professor application. Therefore, this final review process may result in more Requests For Evidence (RFE), or even a higher rate of possible denial for EB-1A and EB-1B application. For more information, please see Extraordinary Ability - EB1 Two-Step Adjudication Process

Please Help Me to Understand the RFE, and Let Me Know What I Should Do?

Question: As a Post-Doctor, I filled the Green Card petition in EB-1A several months ago, with 11 published papers and more than 35 citations. I received a Request For Additional Evidence notice from USCIS this week asking for more evidence of my "individual accomplishments". The RFE also mentioned that "publications and citations are expected for Post-Doctors", so "not evidence of his or her extraordinary or outstanding ability." I got confused for the RFE notice. Please help me to understand the RFE, and let me know what I should do? -------------------------------------------------------------------------------- Answer: For Post-Doctor's petition in EB-1A, an USCIS adjudicator often indicates that the publications are expected for Post-Doctors, therefore not the claimed accomplishments, or not evidence of extraordinary ability or outstanding ability. Similarly, an USCIS adjudicator may also minimize the applicant's value of citations as a necessary part of the publications criterion. The USCIS adjudicator may also dismisses the applicant's collaborative research work as not the individual accomplishments. Therefore, in your RFE response, you need to prove your own contributions in the collaborative work, and also prove that your publication and citation records are above your colleagues in your field, and they are indeed the evidence of your extraordinary ability. For more information, please see EB1-Extraordinary Ability - Request For Evidence

File EB1-Extraordinary Ability and National Interest Waiver at the Same Time

Question: I am a medical research scientist and I have several U.S. patents. I want to file EB1-Extraordinary Ability (EB-1A) and National Interest Waiver applications (NIW) at the same time with the help of your DIY packages. If one of my Form I-140 application gets approved, what would happen with the other pending form I-140 petition? do I have to withdraw the pending I-140 application? Answer: If one of your form I-140 application has been approved, you do not need to withdraw the other pending Form I-140 application. You should keep your EB-1A and NIW application intact, until you receive a Green Card after you file adjustment of status application by using Form I-485. The approved I-140 petition cannot be transferred to other, and the I-485 application approval will take one immigrant visa number form the immigrant quota. For more information, please see EB1-Extraordinary Ability - File EB1-Extraordinary Ability and National Interest Waiver at the Same Time

I-485 Application - Adjusting to United States Permanent Resident

I-485 Application - Adjusting to United States Permanent Resident After your I-140 petition approval, the Form I-485 is used to apply to U.S. Citizenship and Immigration Services (USCIS) to adjust your status to U.S. permanent resident.You may apply to adjust your status if an immigrant visa number is immediately available to you, based on an approved I-140 Form. An adjustment of status application is filed by a beneficiary of an approved immigrant visa petition. The adjustment application is filed after the receipt of an immigrant visa approval notice from the USCIS. When an immigrant visa number becomes available, you can file an I-485 Adjustment of Status application to adjust your status from non-immigrant status to U.S. permanent resident. You need to provide personal information and your dependent information to the USCIS, and USCIS will use the information to determine if there is any reason why permanent residence should not be granted. When you send your I-485 application to USCIS, you may also submit the I-765 form for Employment Authorization Document (EAD) application, if you and your spouse want to work in the United States while your I-485 application is in process. If you have applied for adjustment of status and want to travel abroad while the I-485 application is pending, you may need permission to return to the United States after traveling abroad. If you do not apply for Advance Parole before you leave the U.S. and your current status in U.S. is not H or L, you may be abandoning your I-485 application with the USCIS, and upon your return, you may be refused admission to the United States. For more information, please see Form I-485 Application - Adjusting to United States Permanent Resident

The Requirements for Multinational Executives and Managers Under the EB1 Immigrant Category

The Requirements for Multinational Executives and Managers Under the EB1 Immigrant Category To qualify for a Green Card as an EB1 Multinational Executive or Manager, the foreign worker must show that he or she was employed by a company affiliated with the current U.S. employer as an executive or manager outside the U.S. for at least one year out of the three years before the transfer to the United States. The requirements for multinational executives and managers under the immigration first preference are similar to those for executives and managers under the L-1A non-immigrant subcategory. A non-immigrant worker under L-1A status may generally qualify under the immigration first preference category. However, there is no such equivalent of immigration first preference category for the specialized knowledge L-1B workers. The basic requirements for multinational executives and managers under the EB1 first preference are as follows: a) the alien must have been employed outside the United States in a managerial or executive capacity for at least one year in the three years prior to the filing of the petition; b) if the worker is currently in the U.S. working for the same prospective U.S. employer, the three year period is the time preceding his or her entry to the U.S. as a non-immigrant; c) the foreign employer must have been the same employer, an affiliate or a subsidiary of the prospective U.S. employer; d) the alien must be coming to the U.S. to work in an executive or managerial capacity; and e) the prospective U.S. employer must have been doing business for at least one year. This means that a multinational executive or manager is the one who has been employed outside the U.S. in a managerial or executive capacity for at least one of the three years immediately preceding the filing of the petition. The U.S. employer must file the petition for the manager or executive. The petition must be accompanied by a statement from the U.S. employer affirming all of the pertinent requirements, including a description of the job duties to be performed by the foreign executive/manager in the United States, the job duties performed by the foreign executive/manager abroad, and the periods of employment by the foreign executive/manager abroad. For more information, please see EB1 Multinational Executives and Managers - The Requirements for Multinational Executives and Managers Under the EB1 Immigrant Category

The Outstanding Researchers and Professors EB-1 Subcategory

The Outstanding Researchers and Professors EB-1 Subcategory If a foreign national has an international reputation for being outstanding in a particular academic field, that person may, with an offer of work from a U.S. employer, qualify for a Green Card as a priority worker within the outstanding professors and researchers subcategory. The foreign national will have to show at least three years experience at either teaching or research in the relevant academic field. The job offer for which the applicant is coming to the U.S. must be a specific tenured or tenure-track teaching or research position at a university or an institution of higher learning. Or, if the position is at a research organization, it must be a permanent position - showing permanence can be a bit dicey in cases where the position is based on grant money that will run out in a year, but this can be overcome by showing that the employer intends to seek continued funding and that a reasonable expectation of success exists, such as a track record of renewed funding. Not every type of employer can make use of this visa category. It must be a qualified employer, meaning either a university or institution of higher education or a department, division, or institute of a private research entity with at least three full-time researchers on staff. The private U.S. employer will also need to show a history of making significant achievements in research. For more information, please see EB1 Outstanding Researchers and Professors EB-1 Subcategory

What is National Interest Waiver

What is National Interest Waiver The Immigration Act of 1990 created several new employment-based immigration categories. Section 203(b)(2)(A) includes members of the professions holding advanced degrees and aliens of exceptional ability in the arts, sciences or business. Popularly referred to as EB2, this category normally requires a permanent job offer and an approved Labor Certification. The Immigration Act of 1990 also created a means of avoiding these requirements, by including a provision for a "national interest" waiver of the requirement of a job offer and a Labor Certification. The Act states that "the Attorney General may, when he deems it to be in the national interest, waive the requirement...that an alien's services in the sciences, arts or business be sought by an employer in the United States." The National Interest Waiver applies to both sub-categories of EB2, members of the professions holding advanced degrees and aliens of exceptional ability. Since most scientists, researchers, international students, and university teachers have at least a Master's degree, the waiver provision can be extremely beneficial to the academic community. United States Citizenship and Immigration Services (USCIS) also recognizes that a Bachelor's degree plus five years of progressive work experience in the area of specialty is equivalent to an advanced degree. For more information, please see What is National Interest Waiver

National Interest Waiver - Options to Apply for a U.S. Green Card

National Interest Waiver - Options to Apply for a U.S. Green Card The National Interest Waiver or NIW, is an employment-based, second preference immigration application. It is so named because it asks that the otherwise required Labor Certification requirement be waived "in the U.S. national interest." For applicants with an advanced degree - masters or above, there are three ideal options to apply for a Green Card. These options are in different classifications of Employment-based (EB) immigration, including: · EB1A: Aliens with Extraordinary Ability in science, art, and business (or EB1-EA); · EB1B: Outstanding Researchers and Professors (or EB1-OR); · EB2 NIW: Members of Professions Holding Advanced Degrees Applying for a Waiver of Labor Certification in National Interest (or NIW). Many talented scientists and researchers should have better chances when they apply for an attractive job position. However often times, they failed just because they do not have a U.S. Green Card. Some people with advanced degree do not know how to apply for U.S. Green Card in above three preferred immigration categories, but instead, these people apply for a Labor Certification. However, choosing Labor Certification is not the best strategy for people who may qualify for one of the above three ideal immigration classifications. To qualify for EB2 NIW, an alien applicant needs to demonstrate that his or her work is in the National Interest of United States, and the alien applicant should have an advanced degree and have exceptional ability in sciences, arts or business. The National Interest Waiver Green Card application can either be filed by an alien applicant, or be sponsored by a U.S. employer. An alien applicant may also file additional Green Card applications in other categories, while a National Interest Waiver application is pending. For more information, please see National Interest Waiver - Ideal Options to Apply for a U.S. Green Card

EB1 Extraordinary Ability application - The Reference Letters (Recommendation Letters)

The Reference Letters (Recommendation Letters) and Application Cover Letter For EB1 Extraordinary Ability application, an alien applicants needs to have four to five reference letters (also called recommendation letters) from experts in a field attesting to the alien's significant contributions to the field and national or international reputation in the field. It is recommended a alien should collect a variety of letters from people outside his or her current employer and/or outside the U.S., and from senior people in U.S. government and industry. The reference letters included in the EB1-Extraordinary Ability application and written by field experts should include the following: 1) Writer's qualifications to issue his/her opinion, and the position of the writer in the field; 2) How the writer knows of the alien's work, and alien's background and achievements as well as commentaries on how the alien's achievements are original contributions of major significance; 3) Commentaries on the significance of the alien's publications, awards, and any memberships in professional associations, and how the alien's work has made significant or outstanding contributions to the field; 4) The alien applicant possesses unique knowledge, abilities, or experience that sets him/her apart from the professional peers. The worst thing is to obtain several reference letters which are all look same, and may have the same repeated grammatical errors. The USCIS examiners will believe that these letters were actually prepared by the applicant, rather than by the actual referrers. Also, the EB1-Extraordinary Ability application should include a application cover letter, which should be used as a summary letter discussing the following items: 1) Describes the alien's work and how it affects the field, it’s potential for broader applications; 2) Explains the alien's current work and its future applications, both academically and in the private sector; 3) Describes how the alien is essential or intimately connected to the work, the effects of this work on the U.S. and its people. The application cover letter and reference letters should be written in plain English. Immigration officers with bachelor's or higher degrees will usually read these letters. They may not know the alien's field, but they do spend most working days evaluating and synthesizing information and drawing conclusions. Therefore, an alien applicant should convince them that the alien is doing exceptional work and that somewhere down the line this work will help someone they know. For more information, please see EB1 Extraordinary Ability application - The Reference Letters (Recommendation Letters)

The SEVIS Status Verification at Ports of Entry

The SEVIS Status Verification at Ports of Entry Summary Based on news accounts, and preliminary contact with the Department of Homeland Security (DHS), it appears that DHS is instituting an interim policy of referring arriving F, M, and J nonimmigrants to secondary inspection, to ensure that individuals whose SEVIS records have been terminated are not readmitted without a thorough review of the students’ situation. This is an evolving issue. NAFSA is in contact with the relevant DHS components to verify the details of the procedures, and will update this page as more information becomes available. If you would like to tell NAFSA of specific experiences your students have had, log in to the NAFSA website and submit to NAFSA's Report and Issue in IssueNet. If you would like to talk with your colleagues about how they are responding to this on their campuses, log in to the NAFSA website and engage with them in NAFSA's International Student Advising Forum (ISTA). Background Current law requires all arriving travelers to be inspected by U.S. Customs and Border Protection (CBP) at a U.S. port of entry (POE) before being admitted to the United States. Immigration inspection at a POE consists of two inspections levels: primary and secondary. All arriving visitors pass through primary inspection, where a CBP inspector determines admissibility to the United States by reviewing the results of government database queries, examining travel documents, and conducting a brief interview. If the CBP officer at primary determines that there are no admissibility issues, and any other issues that might have arisen are successfully resolved, then the traveler will be admitted to the United States and permitted to proceed to collect their baggage. If the CBP inspector cannot determine admissibility in the limited time available in primary inspection, the arriving visitor is referred to secondary inspection, where other CBP officers can take more time to investigate, perform additional information system queries, more thoroughly examine documents, and interview the traveler in greater detail, without delaying the flow of travelers in the primary inspection area. In the case of individuals tracked in the Student and Exchange Visitor Information System (SEVIS), the status of the traveler's SEVIS record is relevant to CBP’s decision regarding admissibility to the United States. CBP would ideally be able to see in primary inspection whether a traveler's SEVIS record has been terminated, and if so, refer the traveler to secondary inspection where a thorough review of the case could be done to determine whether or not the SEVIS record termination is an accurate indication of the traveler's current status and admissibility. Although SEVIS is updated with record terminations in real-time, the “lookout” that should be generated in CBP systems as a result of the termination may not be immediately available to CBP systems, and in most cases the workstations in primary inspection do not have direct access to SEVIS itself. DHS plans to bridge this gap by better integrating its information systems, and providing all CBP inspectors with access to SEVIS data. In the meantime, based on news accounts and preliminary contact with DHS, it appears that DHS has instituted an interim policy of referring all arriving F, M, and J students, including students who have never had a SEVIS record termination, to secondary inspection where SEVIS can be accessed, to ensure that individuals whose SEVIS records have been terminated are not readmitted without a thorough review of the students’ situation. NAFSA has inquired with the relevant DHS components to verify the details of the procedures, and will update this page as more information becomes available. http://www.greencardapply.com/news/news13/news13_0517.htm www.greencardapply.com www.greencardfamily.com

The SEVIS Status Verification at Ports of Entry

The SEVIS Status Verification at Ports of Entry Summary Based on news accounts, and preliminary contact with the Department of Homeland Security (DHS), it appears that DHS is instituting an interim policy of referring arriving F, M, and J nonimmigrants to secondary inspection, to ensure that individuals whose SEVIS records have been terminated are not readmitted without a thorough review of the students’ situation. This is an evolving issue. NAFSA is in contact with the relevant DHS components to verify the details of the procedures, and will update this page as more information becomes available. If you would like to tell NAFSA of specific experiences your students have had, log in to the NAFSA website and submit to NAFSA's Report and Issue in IssueNet. If you would like to talk with your colleagues about how they are responding to this on their campuses, log in to the NAFSA website and engage with them in NAFSA's International Student Advising Forum (ISTA). Background Current law requires all arriving travelers to be inspected by U.S. Customs and Border Protection (CBP) at a U.S. port of entry (POE) before being admitted to the United States. Immigration inspection at a POE consists of two inspections levels: primary and secondary. All arriving visitors pass through primary inspection, where a CBP inspector determines admissibility to the United States by reviewing the results of government database queries, examining travel documents, and conducting a brief interview. If the CBP officer at primary determines that there are no admissibility issues, and any other issues that might have arisen are successfully resolved, then the traveler will be admitted to the United States and permitted to proceed to collect their baggage. If the CBP inspector cannot determine admissibility in the limited time available in primary inspection, the arriving visitor is referred to secondary inspection, where other CBP officers can take more time to investigate, perform additional information system queries, more thoroughly examine documents, and interview the traveler in greater detail, without delaying the flow of travelers in the primary inspection area. In the case of individuals tracked in the Student and Exchange Visitor Information System (SEVIS), the status of the traveler's SEVIS record is relevant to CBP’s decision regarding admissibility to the United States. CBP would ideally be able to see in primary inspection whether a traveler's SEVIS record has been terminated, and if so, refer the traveler to secondary inspection where a thorough review of the case could be done to determine whether or not the SEVIS record termination is an accurate indication of the traveler's current status and admissibility. Although SEVIS is updated with record terminations in real-time, the “lookout” that should be generated in CBP systems as a result of the termination may not be immediately available to CBP systems, and in most cases the workstations in primary inspection do not have direct access to SEVIS itself. DHS plans to bridge this gap by better integrating its information systems, and providing all CBP inspectors with access to SEVIS data. In the meantime, based on news accounts and preliminary contact with DHS, it appears that DHS has instituted an interim policy of referring all arriving F, M, and J students, including students who have never had a SEVIS record termination, to secondary inspection where SEVIS can be accessed, to ensure that individuals whose SEVIS records have been terminated are not readmitted without a thorough review of the students’ situation. NAFSA has inquired with the relevant DHS components to verify the details of the procedures, and will update this page as more information becomes available. http://www.greencardapply.com/news/news13/news13_0517.htm www.greencardapply.com www.greencardfamily.com

EB-1 Petition Analysis: Kazarian vs USCIS - Discrediting the Circularity Arguments (Part 1)

EB-1 Petition Analysis: Kazarian vs USCIS - Discrediting the Circularity Arguments (Part 1) The decision in Kazarian v. USCIS goes a long way in discrediting the circularity argument that the USCIS often deploys to shoot down petitions filed under the Extraordinary Ability category (EB1A). Even though the petitioner lost in this case, the new re-issued decision is still a victory for those who wish to seek green cards as persons or extraordinary ability or as outstanding professor or researchers. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down. Layer Bernie Wolfsdorf decided to take on this hopeless case pro bono after it was first denied in 2009. Nobody thought that the Ninth Circuit panel would even agree to review the case again. The whole purpose of seeking review of the decision was not to overturn the denial, but to request the Court of Appeals in the Ninth Circuit to remove, or rather discredit, the circular reasoning of the USCIS with respect to accepting evidence to prove extraordinary ability that was not required by the regulation. They believed that by removing this reasoning in Kazarian, it would give the USCIS Service Centers less ammunition to deny EB-1 petitions by rejecting evidence that can otherwise prove that one is a person of extraordinary ability. In Kazarian case, the main bone of contention was what constitutes “authorship of scholarly articles in the field.” In the original decision, Kazarian v. USCIS, the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.” The Court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the Court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.” It was precisely this reasoning that the petitioner Kazarian’s new brief, along with the amicus brief of the American Immigration Council attacked, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS. Fortunately, the new decision in Kazarian acknowledged the AAO’s faulty reasoning, which Kazarian affirmed, and the following extract from the decision is worth noting: “The AAO’s conclusion rests on an improper understanding of 8 CFR § 204.5(h)(3)(vi). Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor the AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR § 204.5. " It is hoped that the USCIS pays heed to the Kazarian court’s admonition of its flawed circularity analysis and stops insisting on evidence that has no basis in its own regulations. Deserving petitioners claiming extraordinary ability who benefit the United States ought to be able to gain permanent residence without jumping through needless hoops and hurdles. http://www.greencardapply.com/news/news13/news13_0603.htm www.greencardapply.com www.greencardfamily.com

EB-1 Petition Analysis: Kazarian case for Extraordinary Ability and Outstanding Researcher/Professor (Part 2)

EB-1 Petition Analysis: Kazarian case for Extraordinary Ability and Outstanding Researcher/Professor (Part 2) The EB1-Extraordinary Ability (EA1A or EB1-EA) and EB1 Outstanding Researcher or Outstanding Professor(EB1B or EB1-OR) category has high standards for successfully obtaining approval. These two EB1 categories have become even more difficult, in large part due to a change in the way supporting evidence is analyzed by the USCIS. An explanation of the approach is set forth in an USCIS memorandum, relying on a case entitled Kazarian v. USCIS. The history of USCIS changes and the current, controversial, two-step analysis described in the USCIS memorandum are described here. The USCIS policy memo entitled, Evaluation of Evidentiary Criteria in Certain I-140 Petitions, provides instructions to USCIS adjudicators of Extraordinary Ability, Outstanding Professor or Researcher, and Exceptional Ability I-140 petitions. This memo outlines a two-step adjudication analysis based on the decision by the Court of Appeals for the Ninth Circuit in Kazarian v. USCIS. The USCIS issued a final memo on December 22, 2010. An interim memo previously issued on April 18, 2010 contained the same guidelines for adjudication of the affected types of petitions. The memo instructs USCIS adjudicators to use an approach to evidence evaluation referenced in the Kazarian case. This review consists of a "two-part approach where the evidence is first counted and then considered in the context of a final merits determination." The USCIS first evaluates the evidence presented to determine whether the initial evidentiary requirements are met - fitting within the listed categories of evidence pertinent to the requested immigration category. The second part of the analysis essentially involves reviewing the evidence as a whole to determine whether the foreign national meets the overall eligibility standard for the category. Since the Kazarian case, and the issuance of the interim and final memos, USCIS adjudicators and the Administrative Appeals Office (AAO) have been applying these instructions narrowly, interpreting them as requiring the application of the second part of the "Kazarian approach" in every case. This has resulted in large numbers of petition denials that potentially were approvable prior this change. The memo purports to base the guidance it contains on the Kazarian decision. The two-step framework for the analysis, however, was established earlier by other federal court decisions. The court in the Kazarian case did not have to apply two steps, as it found that the petitioner did not meet the required initial evidentiary criteria in the Extraordinary Ability category. As such, the holding in that case was not related to the two-step adjudication framework. Instead, the court warned that the USCIS was not to "unilaterally impose novel substantive or evidentiary requirements." This essentially means that the USCIS is supposed to review the evidence under the legal and regulatory criteria, as stated, and not put their own "spin" on the requirements by relying on the decision's dicta. In the Kazarian case, the court did not reach the second step in the analysis, as the petitioner did not sufficiently meet the initial evidentiary criteria. The trend involves a final adjudication from the USCIS using the second step in its analysis in most cases, without regard to the findings made during the initial review of the evidence. In many cases where the USCIS determines that the petitioner meets the initial evidentiary requirements, denials still are issued. This is due to the second step, wherein the USCIS often determines that the evidence, taken in totality, does not show that the petitioner has reached the level of accomplishment required for the requested classification. Adjudication trends since the issuance of the USCIS memo concern many in the immigration community. The USCIS interpretation of the Kazarian decision has altered long-standing adjudication principles. http://www.greencardapply.com/news/news13/news13_0610.htm www.greencardapply.com www.greencardfamily.com

Do I have the Status Problem after the J1 Visa Expiration and Before the H-1B Approval?

Question: As a visiting scholar, my J1 visa will expire at the end of this month. A company wants to hire me as a research engineer, and has applied the H1B visa for me to change the status. Due to the H1B visa yearly gap, the H1B application is pending, and I can work for the company only after October 1, 2013. Do you think I may have the status problem after the J1 visa expiration and before the H1B approval? -------------------------------------------------------------------------------- Answer: To qualify for the H-1B visa approval to change your status from J1 to H-1B in the United States, you need to keep a legal nonimmigrant status on October 1, 2013. Since your J1 visa will expire at the end of this month, USCIS may approve the company's H-1B petition for an alien's worker, but you may not be able to change your status from J1 to H-1B in the United States. If that situation happens, after the H-1B petition is approved for the employer, you need to travel to your home country to get the H-1B visa on your passport at an U.S. Embassy, and then return to U.S. to work for this company. http://www.greencardapply.com/question/question13/question13_0602.htm www.greencardapply.com www.greencardfamily.com

The No "Successor-in-interest" Nature for Corporate Changes by Merger or Acquisition

Question: I am in a unique situation. I have filed for my H1B through company A and pretty recently got a 3 year extension too. I also have an approved Labor and I-140 through them. This May the company had an asset only acquisition and is now operating under a new name and Employee ID. Since we are all open to file our I-485 I contacted my immigration lawyer and explained the company reorganization. At first the lawyer was claiming that we should file an Amended I-140 due to the reorganization. My company lawyer informed my Immigration Lawyer that the new company has not taken over the liabilities of the old company, it only took over the assets. Now my immigration lawyer claims that I will have to transfer my H1B to the new company and move forward with my original I-485 application and then port after 180 days. I wanted to get a second opinion from someone on this board. -------------------------------------------------------------------------------- Answer: An amended H-1B petition is required, if your current employer undergoes a manger or acquisition AND if the new company does NOT "succeed the interest and obligations of the petitioning employer", and your employment conditions have changed. The corporate changes by merger or acquisition with no "successor-in-interest" nature will have affect on the H1B employee's status. For your case, your company lawyer informed your immigration lawyer that the new company has not taken over the liabilities of the old company, which means that the acquisition is not "succeed the interest and obligations of the petitioning employer", so your current employer needs to inform the USCIS for this changes which will affect your H1B status. http://www.greencardapply.com/question/question13/question13_0609.htm www.greencardapply.com www.greencardfamily.com

how to file the financial sponsorship for his Green Card application.

Help Desk: I am a U.S. citizen, and my boy friend is from Nepal. He came here as a tourist and stayed illegal now for 11 months. We would like to get married in New York City soon. I want to know how to file the financial sponsorship for his Green Card application. Thank you. -------------------------------------------------------------------------------- Answer: Because you are a U.S. citizen, and your boy friend was inspected by the USCIS when he entered the U.S., he will be eligible to process his Green Cad application inside U.S. once you are married. A U.S. citizen or legal permanent resident can be the Sponsor of a family based immigration petition. However, the Sponsor has to meet some requirements and legal obligations. The Sponsor has to execute a legally binding affidavit of support for the beneficiary, in which the Sponsor guarantees to maintain the standard of living of the intending immigrant at a level not lower than 125% of the national poverty level. This obligation continues until the beneficiary has become a U.S. citizen, or has worked in the United States for 40 qualifying quarters. http://www.greencardfamily.com/question/question2013/question2013_0609.htm www.greencardapply.com www.greencardfamily.com

As a U.S. Permanent Resident, You May Sponsor Your Wife's Green Card Application

Help Desk: I recently get my Green Card based on my employment sponsorship. Please let me know how could I help my wife to get her Green Card? and how long it may take? Thank you very much. -------------------------------------------------------------------------------- Answer: As a U.S. Permanent Resident, you may sponsor your wife's Green Card application, by applying for an Form I-130 petition. If she is in overseas, she will have to wait for the I-130 petition to be approved by USCIS, and then wait for an immigration visa number to become available, which may take years, before her petition can be processed at the Consulate. However, if the wife is in the United States, she will have to continue to remain on the visa status (for example, H-1B, L) that the wife came in with, until she applies for their I-485 petition. http://www.greencardfamily.com/question/question2013/question2013_0610.htm www.greencardapply.com www.greencardfamily.com

CIR 2013 on the Senate Floor Schedule Next Week

CIR 2013 on the Senate Floor Schedule Next Week On May 28, 2013, this CIR 2013 bill was placed on Senate Legislative Calendar under General Orders. Calendar No. 80. The Senate began consideration of the motion to proceed to consideration of S. 744, to provide for comprehensive immigration reform. A motion was entered to close further debate on the motion to proceed to consideration of the bill, and, in accordance with the provisions of Rule XXII of the Standing Rules of the Senate, and pursuant to the unanimous-consent agreement of June 6, 2013, a vote on cloture will occur at 2:15 p.m., on Tuesday, June 11, 2013. However, subsequently, the motion to proceed was withdrawn. Then a unanimous-consent agreement was reached providing for further consideration of the motion to proceed to consideration of the bill at approximately 9:30 a.m. today, Friday, June 7, 2013. Here is the unanimous-consent-time agreement which was reached concerning the procedure for the next several days: that following any Leader remarks on Friday, June 7, 2013, Senate continue consideration of the motion to proceed to consideration of S. 744, to provide for comprehensive immigration reform; that the time until 1:30 p.m. be divided as follows: Senator Sessions, or designee, controlling three hours, and the Majority Leader, or designee, controlling the remaining time; that following any Leader remarks on Monday, June 10, 2013, Senate resume consideration of the motion to proceed to consideration of S. 744; that the time until 5 p.m. be divided as follows: Senator Sessions, or designee, controlling two hours, and Senator Leahy, or designee, controlling the remaining time; that at 5 p.m., Senate resume consideration of S. 954 (Farm Bill), to reauthorize agricultural programs through 2018, with the time until 5:30 p.m. equally divided between the two Leaders, or their designees; that at 5:30 p.m., all post-cloture time be considered expired and Senate vote on or in relation to the Leahy amendment, with no amendments in order to the amendment prior to the vote; and upon disposition of the Leahy amendment. http://www.greencardfamily.com/news/news2013/news2013_0609.htm Senate vote on passage of S. 954, as amended; that upon disposition of S. 954, Senate resume consideration of the motion to proceed to consideration of S. 744, with Senator Sessions, or designee, controlling one hour of debate on Monday, June 10, 2013 evening; that following any Leader remarks on Tuesday, June 11, 2013, Senate continue consideration of the motion to proceed to consideration of S. 744, with the time until 12:30 p.m. equally divided between the proponents and opponents; with Senator Sessions, or designee, controlling up to one hour of that time; that at 2:15 p.m., on Tuesday, June 11, 2013, Senate vote on the motion to invoke cloture on the motion to proceed to consideration of S. 744; and that if cloture is invoked on the motion to proceed, the time until 4 p.m., be equally divided between the proponents and opponents; and at 4 p.m., Senate vote on the adoption of the motion to proceed to consideration of S. 744. www.greencardapply.com www.greencardfamily.com

The Travel Document Requirements - Valid Visa for Reentry

Travel documents must be reviewed prior to departure. There are some steps, such as obtaining AP, which cannot properly be filed from outside the United States. For those who need to apply for visas, there are often supporting documents that should be gathered prior to departure from the U.S. Many unfortunate situations can be avoided by checking expiration dates of important documents, like the visa and AP, well in advance of departing the United States. Those who have plans to travel outside of the United States in the upcoming year must make sure their travel documents are in order. If a visa foil (commonly referred to as a stamp) is needed for reentry into the United States, it is important to double check the visa expiration date printed on the visa stamp in the passport. For many, a current visa in the appropriate nonimmigrant category is required for reentry into the United States after travel abroad. Obtaining a Visa It is important to remember that visa applications are made at U.S. consulates abroad. Appointments for visa interviews must be made in advance, and supporting documents must be completed and at hand for the interview. Application instructions are available online. These should be reviewed well in advance of the appointment. Instructions are subject to change and there are variations from one consulate to another with respect to some of the requirements and procedures. Port-of-Entry Matters Even if a new visa is not needed, travelers should make sure they have proper documents to present to the U.S. Customs and Border Protection (CBP) officials upon their return to the United States at ports of entry. To avoid possible problems with reentry, it is important for travelers to understand the requirements for entry in their particular status and to be ready to explain the purpose for their requested time in the United States. They should have appropriate documents to verify their explanations, for example, a recent letter from the employer for those seeking to enter in employment-based categories. http://www.greencardfamily.com/news/news2013/news2013_0610.htm Obtaining Advance Parole Individuals are advised to apply for AP in advance of the expiration date to avoid delays in travel. AP renewals can be filed up to 120 days in advance of the expiration date. In the case of a true emergency, AP generally can be requested at a local USCIS office on a same-day basis. However, this procedure is at the discretion of the local USCIS office and most offices are reluctant to issue these documents except in truly extreme situations, such as the death or serious illness of a close family member. Any such emergent request needs to be thoroughly documented. With respect to AP, the USCIS initiated a combination EAD/AP card in early 2011. While the dual benefits of EAD and AP can be granted in a single card, it remains necessary to separately file the required forms requesting each benefit. The same applies to renewals and extensions of EADs and APs. We have found that there is some confusion in this area. For that reason, readers are reminded that the EAD requires the filing of an I-765 form and the AP requires the filing of an I-131, both in the initial request and any renewal requests. www.greencardapply.com www.greencardfamily.com

The Difference between Marrying a U.S. Citizen in my Home Country or in the U.S.

http://www.greencardfamily.com/question/question2013/question2013_0505.htm The Difference between Marrying a U.S. Citizen in my Home Country or in the U.S. Question: I am an B-1 visa visitor. I am planning to marry a U.S. Citizen. What is the difference between marrying a U.S. Citizen in my home country or in the U.S.? How long will we be apart to get Green Card? Answer: If you marry a U.S. citizen in the United States, you may face a longer waiting time to get Green Card, but you will be able to stay together while you wait. If you chose to immigrate from outside the United States after your marriage abroad to a U.S. Citizen, the waiting time to get Green Card is shorter, ranging anywhere from a few months to a year. But you will be separated except for when your U.S. spouse can visit you abroad. http://www.greencardapply.com http://www.greencardfamily.com

How to File Provisional Unlawful Presence Waiver?

Q: Why did DHS create the Provisional Unlawful Presence Waiver? A: Currently certain immediate relatives must travel abroad to obtain an immigrant visa from the Department of State (DOS) before they can return to the United States and be admitted as lawful permanent residents. In many cases, these immediate relatives also must request a waiver of inadmissibility of their unlawful presence in the United States. As a result, these immediate relatives must remain outside of the United States, separated from their U.S. citizen spouses, parents, or children, while U.S. Citizenship and Immigration Services (USCIS) adjudicates their waiver applications. In some cases, waiver application processing can be lengthy, prolonging the separation of these immediate relatives from their U.S. citizen spouses, parents, and children. USCIS anticipates that this new provisional unlawful presence waiver process will significantly reduce the time that U.S. citizens are separated from their immediate relatives. USCIS approval of a provisional unlawful presence waiver prior to departure also will allow the DOS consular officer to issue an immigrant visa without delay, as long as there are no other grounds of inadmissibility and the immediate relative is otherwise eligible for an immigrant visa. Individuals who may be inadmissible on any other grounds of inadmissibility are not eligible for the provisional unlawful presence waiver process. Q: How do I apply for the provisional unlawful presence waiver? A: To apply for a provisional unlawful presence waiver you must file a Form I-601A, Application for Provisional Unlawful Presence Waiver. Make sure your application is complete, signed, and submitted with the correct application and biometric fees. Follow the I-601A application instructions and check the USCIS web site at www.uscis.gov/forms for any updates to the instructions or required fees. You should notify the Department of State of your intention to file a provisional unlawful presence waiver. See the DOS website at www.state.gov for more information on how to notify DOS. Q: How do I apply for the provisional unlawful presence waiver if I am in removal proceedings? A: Only certain individuals in removal proceedings are eligible to apply for a provisional unlawful presence waiver. Individuals who re immediate relatives of U.S. citizens may apply for a provisional unlawful presence waiver while in removal proceedings, if the removal proceedings: Are administratively closed; and Have not been re-calendared as of the date of filing the I-601A. You still must meet all the requirements for the provisional unlawful presence waiver, including the requirement that you have an immigrant visa case pending with DOS and have already paid the immigrant visa processing fee. Like individuals who are not in removal proceedings, you should also notify DOS of your intention to file a provisional unlawful presence waiver. Although you are in removal proceedings, the application for a provisional unlawful presence waiver is filed with USCIS. You should inform the Immigration Judge and the local U.S. Immigration and Customs Enforcement (ICE) counsel that you have applied for a provisional unlawful presence waiver. Promptly notifying the immigration court and ICE counsel will help with the process to have the removal proceedings terminated or dismissed before you depart for your immigrant visa interview. Your removal proceedings should be terminated or dismissed before you depart the United States to avoid delays in your immigrant visa processing and to avoid the risk that you may be found inadmissible on other grounds. Q: Will I have to be fingerprinted or appear for an interview as part of the provisional unlawful presence waiver process? A: All provisional unlawful presence waiver applicants will be required to appear at a USCIS Application Support Center (ASC) for biometrics collection. Generally, USCIS will not require provisional unlawful presence waiver applicants to appear for an interview but may schedule an interview for an applicant if the facts in a particular case warrant further inquiry and review. http://www.greencardapply.com http://www.greencardfamily.com http://www.greencardfamily.com/news/news2013/news2013_0305.htm

Students Who Travel outside U.S. beyond 5 Months

Question: I am an international student in a U.S. college with F-1 visa. Due to a family reason, I want to take about half year break from my current study in U.S. to go back my home country. Can I come back to U.S. to continue my education with the F-1 visa? Answer: Your F-1 visa may be automatically cancelled when you are not enrolled and spend more than five months abroad. Under this circumstance, your F-1 visa is not lawful because a F-1 visa is only valid for continuing student. After five months, your are no longer considered a continuing student. Therefore, even if the visa stamp in the passport has not expired, it is invalid and, if presented at the port of entry, the officer can cancel it and deny your admission. But if the break is less than five months, you can return on the unexpired F-1 with a valid I-20 form endorsed by the school. http://www.greencardapply.com/question/question13/question13_0414.htm http://www.greencardapply.com http://www.greencardfamily.com

Labor and Business Reach Deal on Immigration Issue

Labor and Business Reach Deal on Immigration Issue http://www.greencardapply.com/news/news13/news13_0403.htm The nation’s top business and labor groups have reached an agreement on a guest worker program for low-skilled immigrants, a person with knowledge of the negotiations said on Saturday. The deal clears the path for broad immigration legislation to be introduced when Congress returns from its two-week recess in mid-April. Senator Charles E. Schumer, Democrat of New York, convened a conference call on Friday night with Thomas J. Donohue, the president of the U.S. Chamber of Commerce, and Richard L. Trumka, the president of the AFLCIO, the nation’s main federation of labor unions, in which they agreed in principle on a guest worker program for low-skilled, year-round temporary workers. Mr. Schumer is one of eight senators from both parties who have been negotiating an overhaul of the nation’s immigration laws. Pay for guest workers was the last major sticking point on a broad immigration package, and one that had stalled the eight senators just before the break. The eight senators still need to sign off on the agreement between the business and labor groups, the person with knowledge of the talks said. “This issue has always been the deal breaker on immigration reform, but not this time,” Mr. Schumer said. The accord between the influential business and labor groups all but assured that the bipartisan group of senators would introduce their broad immigration legislation in the next few weeks. Their bill, which they have been meeting about several times a week since the November election, would provide a path to citizenship for the 11 million illegal immigrants already in the country. It would also take steps to secure the nation’s borders. A similar bipartisan group in the House has been meeting on and off for nearly four years, and hopes to unveil its own immigration legislation shortly. The agreement resolved what the pay level should be for low-skilled immigrants — often employed at hotels and restaurants or on construction projects — who could be brought in during labor shortages. Labor groups wanted to ensure that guest workers would not be paid less than the median wage in their respective industries, and the two sides compromised by agreeing that guest workers would be paid the higher of the prevailing industry wage as determined by the Labor Department or the actual employer wage. Under the deal, guest workers would be allowed to pursue a path to citizenship and to change jobs after they arrived in the United States. Another sticking point, involving the specific type of jobs that would be included in the guest worker program, was also resolved. Though low-skilled construction workers will be included in the visa program, construction unions persuaded the negotiators to exclude certain types of more skilled jobs — like crane operators and electricians — from the program, officials involved in the talks said. According to officials with the AFLCIO., the program would start at 20,000 visas, rising to 35,000 visas in the second year, 55,000 in the third and 75,000 in the fourth. In the fifth year, the program would expand or shrink based on the unemployment rate, the ratio of job openings to unemployed workers and various other factors. The agreement calls for a maximum of 200,000 guest visas granted each year. One third of all visas available in any given year would go to businesses with fewer than 25 employees. No more than 15,000 visas per year would go to construction occupations. Business groups, which had long been pushing to allow in 400,000 such guest workers each year, will get what they regard as an adequate number to meet the needs of employers. http://www.greencardapply.com http://www.greencardfamily.com

Questions and Answers for the Senate Immigration Bill

Questions and Answers for the Senate Immigration Bill The Senate Judiciary Committee has begun hearings on a sweeping bill to overhaul the immigration system. The 844-page bill includes a pathway to citizenship for immigrants here illegally, new border security measures, a mandatory nationwide system to verify the legal status of newly hired workers, two new guest worker programs and a host of changes to the legal immigration system. Q: Your news analysis, on April 17, said that "the bill would reduce the categories of family members eligible for green cards, eliminating siblings of United States citizens." I am a United States citizen, and I wasn't aware that I can currently get a green card for my sibling who is a foreigner. Could you please tell me more? A: Under the current system, the distribution of visas each year to foreigners applying to become legal permanent residents - in other words, to receive a green card - is done through a list of preferences. For foreigners applying for green cards based on their family ties (as opposed to their work skills), the fourth visa preference is for brothers and sisters of adult United States citizens. About 65,000 visas are available each year for those siblings. The Senate bill would eliminate that sibling preference 18 months after the law takes effect. The senators have said that applications already submitted under that preference will be completed; no one with a valid application who is waiting in line will be left out. The backlogs in that category are huge. The longest wait is for siblings from the Philippines. Visas are being issued this month to Filipino siblings who applied in July 1989. Q: If the bill is passed in the Senate, does it have to pass the House next? If so, will the bill become law in more than a year, in your opinion? A: The Senate will consider the bill written by a bipartisan group of eight senators. Those senators have said they hope for a vote by late May or early June. The House of Representatives will consider separate legislation. A bipartisan group in the House has been working in closed-door negotiations on a comprehensive immigration bill, which appears to have many of the same elements as the Senate bill. The House bill has not been introduced yet. It is too soon to predict when or even if either bill would pass or become law. We are at the beginning of a far-ranging, fast-paced and very lively debate in Congress on these proposals. Q: This bill claims those who apply will not receive any federal benefits, although they will be allowed to stay, work and pay taxes. This doesn't make sense to me, as their children will be allowed to go to school and they will still be able to receive medical care at the emergency medical outlets. Who pays for this if not the taxpayers? A: Under the Senate bill, immigrants who have been in the United States without legal status would be able to apply for registered provisional immigrant status, which they could obtain starting six months after the law is enacted, if they meet the requirements and if border security conditions are met. Those immigrants will be allowed to work - paying whatever taxes they owe - and to travel. Immigrants with provisional status would not be eligible for any federal benefits available to low-income people. For example, they would not be eligible for Medicaid, food stamps, temporary assistance for needy families, low-income assistance in the prescription drug program or federal housing aid. The children of immigrants with provisional status, and children with that status, would be allowed to attend public schools through high school. This is not related to the Senate bill. The Supreme Court determined in a 1982 decision that immigrant children could attend school regardless of their status. Also, hospital emergency rooms are required by current law to provide care to anyone seeking it. A goal of the Senate bill is to bring more than 11 million illegal immigrants into the system, requiring them to pay any back taxes they owe (many of these immigrants already pay taxes) as well as their future taxes. Provisional immigrants who fail to pay their taxes would not be eligible to become citizens. So, the immigrants would be among the taxpayers paying for the services. Q: Under present law any children of these illegal immigrants will be citizens if born in the United States, and they would be eligible for federal benefits. That seems to preclude the idea that no federal benefits would go to the immigrants under this bill. A: According to estimates by the Pew Hispanic Center, at least 4.5 million children who are United States citizens have at least one parent who is an immigrant here illegally. The immigration status of the parents does not change the fact that these children are Americans. They are eligible, like any other children who are citizens, for state and federal benefits and financial assistance for education, if they meet the requirements. http://www.greencardapply.com/news/news13/news13_0425.htm Q: What confirmation can be given that there will not be loopholes for those who have criminal records to gain legal status anyway? A: Under the Senate bill, immigrants living in this country illegally would not be eligible for provisional status if they have been convicted of a felony, three or more misdemeanors or a serious crime in another country; if they have voted illegally; or if they were found to present a national security risk. The Senate proposal does not change the restrictions that now exist in the law or open any new loopholes. Since the Sept. 11 terrorist attacks, the Department of Homeland Security and other federal law enforcement agencies have revamped their systems for checking the backgrounds of foreigners applying for visas and other immigration benefits. Criminal and national security databases maintained by the F.B.I. have been linked to Homeland Security's immigration records. Illegal immigrants applying for registered provisional status under the bill will have to give fingerprints, photographs and biographical information that would be run through the databases. A recent dress rehearsal, on a smaller scale, came last year when the Obama administration offered deportation deferrals to young people here illegally who came when they were children. Since August, U.S. Citizenship and Immigration Services, the agency in charge of that program, has processed more than 488,000 applications, including taking fingerprints from more than 450,000 immigrants. So far, at least, there have been few reports of fraud. Immigration lawyers have reported that many young people who had criminal records decided not to apply for deferrals. However, under the Senate bill as many as 11 million undocumented immigrants could be eligible for provisional status. During the debate in the Senate, federal officials will no doubt face questions about what measures they are planning to stop fraud. Q: How can we confirm which illegal migrants have been here for years or have just arrived? Will just their sworn statement suffice? How do we confirm the validity of their statements about when they arrived? A: To qualify for registered provisional status, illegal immigrants will have to show they were living in the United States before Dec. 31, 2011, and have been here continuously since then. It will not be enough for those immigrants to state how long they have been here. They will have to provide documents to prove it, such as tax records, paychecks, utility bills, leases, school records or purchase receipts. Q: How much will this process cost the American taxpayer during a time that we are running record deficits? A: There has not yet been any estimate of the cost of the Senate bill from the Congressional Budget Office, considered the most reliable auditor of new laws by Congress. The senators who wrote the bill have estimated the spending at about $17 billion over 10 years. Almost all of that money would be for border security, including up to $5 billion for new surveillance technology and additional border agents; $1.5 billion for new border fencing; and money to add 3,500 customs agents. The bill includes a provision authorizing Homeland Security officials to charge fees "sufficient to recover all costs" of registering the immigrants. In order to qualify for provisional status, immigrants will have to pay a $500 penalty as well as any back taxes, and they will have to pay additional fees and all taxes they owe during a period of at least 10 years during which they would remain with that status. As a result, the sponsors of the bill say that it will generate significant federal revenues. http://www.greencardapply.com http://www.greencardfamily.com

The Significant Reforms to Employment-Based Immigration in the Senate Immigration Bill

The first major reform to the employment-based immigration system (which allows qualifying foreign workers to obtain green cards) is the exemption from annual caps for certain types of working immigrants, including: “derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in STEM field; and physicians who have completed the foreign residency requirements or have received a waiver.” http://www.greencardapply.com/news/news13/news13_0506.htm This classification closely mirrors the current first employment-based category or preference. It also reflects an emphasis on in-demand jobs in the United States, such as STEM (science, technology, engineering, and mathematics) fields and healthcare. The bill then reorganizes the current allocation of employment-based visas to favor certain professional and skilled workers with desired talents, degrees, and experience in specified occupations. It also “creates startup visa for foreign entrepreneurs who seek to emigrate to the United States to startup their own companies.” One intriguing proposal is the “Merit Based Visa”, a program that would be instituted in the fifth year after enactment of the bill. This is completely new, meaning it does not alter existing programs like many of the other reforms. Here is how it would work: Points would be awarded to individuals based on education, employment, length of residence in the United States, and other considerations. Those with the most points would earn the merit based visas. Initial eligibility for accessing the merit based pathway would turn on talent, participation in an existing worker program, and those with family in the U.S. A minimum of 120,000 visas for this program would be available each year and would increase by 5 percent per year if demand exceeds supply in any year where unemployment is under 8.5 percent. Eventually, the maximum would be capped at 250,000. The Gang of Eight’s reform bill is, in part, a response to America’s business leaders who have consistently demanded an overhaul of the employment-based immigration system. http://www.greencardapply.com http://www.greencardfamily.com

What Are the Major Differences between the EB1 and EB2 NIW?

What Are the Major Differences between the EB1 and EB2 NIW? http://www.greencardapply.com/question/question13/question13_0424.htm Question: What are the major differences between the EB1 and EB2 NIW? Can apply for the EB1 and NIW at the same time? Answer: The requirements in EB1 and NIW are very different, and the application preparation is significantly different between these two classifications. For example, it may be likely that one could qualify for EB1. It is possible to file two petitions such as an EB1 and a NIW at the same time. Some applicants file two I-140 petitions simultaneously in EB1 and NIW. There is nothing stated in the law that prohibits multiple filings. Actually, multiple filings increase your chances. The EB1-EA and NIW can be a self-petitioned application and does not need to be sponsored by your current employer. But EB1-OR is an employer-sponsored application, it needs to be sponsored by your current employer. If you are currently employed, your employer’s sponsorship may help your application, including the letters of recommendation, and other evidences. http://www.greencardapply.com http://www.greencardfamily.com

The Advantages of National Interest Waiver

The Advantages of National Interest Waiver over Regular EB-2 Based PERM Labor Certification. http://www.greencardapply.com/question/question13/question13_0505.htm Question: I am considering the Green Card application in EB2. What are the advantages of EB2 - National Interest Waiver over the regular EB-2 based on the PERM Labor Certification? Answer: To get a Green Card under EB2 - National Interest Waiver category, there are two independent steps. The first step is to file form I-140 along with a petition to verify that your employment has enough national interest to waive the otherwise required Labor Certification (PERM). After your I-140 is approved, you may file for Green Card using form I-485. Many people prefer NIW for several reasons. First, you can self-petition. This means that you can file for Green Card by yourself, without the consent or knowledge of your employer. Second, the NIW requirement is easier than EB-1 Alien of Extraordinary Ability. Third, with NIW, you can skip the Labor Certification process (PERM). Filing a Labor Certification is a burdensome and time consuming process. http://www.greencardapply.com http://www.greencardfamily.com

The Likely Release of Proposed Rule of H-4 Spouse EAD

The Likely Release of Proposed Rule of H-4 Spouse EAD Under the rule-making Executive Order, the OMB of the White House has from 30 days to 90 days to complete their review. There are some exceptions including any rules that involve emergency or serious economic impact, which can be completed within 30 days. Another rule is the OMB's authority to extend the maximum 90-day review mandate. In 2012, for obvious reasons, a host of visa and immigration related rules of the DHS, DOS, and DOL kept extended over and over beyond 90 days and some beyond 180 days. The reason why this proposed rule review may be completed in March 2013 is the bi-annual rule making agenda that set the target date at March 2013, implying that this proposed rule review schedule may follow the 90-day review schedule of the OMB and USCIS. The proposed rule was submitted by the USCIS to the OMB on 12/10/2012. We will see whether there will be any chance that the proposed rule review will be completed rather earlier under the 60-day review schedule. We will wait and see. This does not mean that the H-4 EAD rule can be implemented in March 2013. Once the proposed rule is published in the federal register with a period of comment, it will have to go through another cycle of the OMB review before the binding Interim Final or Final Rule can be published in the federal register. Proposed rule is not binding. Besides, depending on the USCIS policy, there will be an extended period of time for the agency to review the comments which they received from the public before they draft and submit the Interim Final or Final to the OMB for review. The proposed rule will also provide from 30 days to 60 days comment period. Our smart visitors will be able to figure out the rough timeline, from the foregoing information, when the H-4 spouse EAD program may be in place and implemented. http://www.greencardapply.com/news/news13/news13_0201.htm http://www.greencardapply.com http://www.greencardfamily.com

Some of the Common Misunderstandings Regarding the Annual H-1B Limit or Cap

Some of the Common Misunderstandings Regarding the Annual H-1B Limit or Cap Given the stress and timing considerations that accompany H1B cap-subject filings, it is important not to improperly assume that a particular case needs a cap number. When reverting to H1B status from another nonimmigrant status, an individual automatically becomes subject to the H1B cap. Others believe that being counted against the H1B cap is a way to become eligible for more H1B time. These matters are clarified here for our readers. 1) Changing Status Does Not Make a Person Subject to Cap As a general and oversimplified explanation, most people only need to be counted against the H1B cap once. The rule regarding the cap references being counted within the six years prior to the petition. However, even those requesting extensions beyond six years do not need to be counted against the H1B cap, if they have previously been counted. This general rule holds true even if one changes to a different nonimmigrant status in the interim. 2) Filing a Cap-Subject Case Does Not Give Extra H1B Time Many seem to misunderstand the function of the H1B cap. The cap is an annual limit on the number of new H1B workers. These new workers would be eligible for a maximum of six years in H1B status, subject to certain exceptions allowing additional time. Our firm often receives questions from individuals seeking a way to become eligible for more than six years of H1B time. They usually are close to the end of their six-year H1Bs and, erroneously, assume that it is possible to simply file another cap-subject case to acquire six more years of H1B time. This is not correct. Generally, in order to be eligible for a full six years of additional H1B time, it is necessary to leave the United States for one year. After that year, one becomes eligible for six more years, but must be counted against the numerical cap anew. In some cases, if the person has not used all six years in H1B status before leaving, there could be an option to return for the unused "remainder" time (without becoming subject to the cap). The other options for eligibility for more H1B time require the filing of an employment-based permanent residence (green card) case at least 365 days earlier, or obtaining an I-140 immigrant petition approval when the priority dates are not current. http://www.greencardapply.com/news/news13/news13_0221.htm http://www.greencardapply.com http://www.greencardfamily.com

The Student Visa Cancellation and the Visa Reapplication

The Student Visa Cancellation and the Visa Reapplication There are situations in which an F-1, J-1, or M-1 visa issued to a foreign national student may be cancelled automatically due to a break in the student's studies. There are two such conditions under which such a break in studies causes cancellation of the student visa. One occurs when the student remains in the United States without attending school for certain extended periods. The other results when a student takes time away from school and spends several months abroad. Transfers Enjoy Five-Month Window / Reinstatement Application: Students (F-1 or M-1) who are in the process of transferring between schools are regarded as being out of status if they do not resume classes within five months of the transfer. The same five-month window applies to students who are transferring between programs after completion of a course of study. In these situations the visa stamp becomes invalid even if there is no formal government finding that the student is out of status. If there has been a five-month lapse in studies the student is eligible to apply for reinstatement. Of course, eligibility to request reinstatement does not mean that the request will be granted in all cases. If reinstatement is granted, the student is back in status and the lapse is forgiven. In that event, the visa becomes valid again until its expiration date (or until a new status lapse). If the reinstatement is denied, however, the student's status is lost, and the visa remains invalid. The student is regarded as out of status and accruing unlawful presence from the date of the denial of the reinstatement request. Thus, in most instances, this requires that the student depart the United States and apply for a new visa from abroad. Reapplication of the F-1, J-1, or M-1 Visa Abroad: A student whose visa is automatically cancelled due to failure to attend school and/or being denied reinstatement can reapply for a visa at the U.S. consulate in her/his home country. If the student departs in a timely manner, s/he would not typically be barred from reapplying for a new student visa. The consulate must review the situation, however, to determine if the applicant is really a bona fide student and eligible for a new student visa. Consular officers are instructed to review the reasons that a student was not attending classes as required. Clearly, the chance of success depends upon the student's ability to demonstrate a valid reason for the failure to comply with the terms of his/her status. Students who Travel for Extended Periods - Beyond 5 Months: Another situation in which a visa is automatically cancelled is when a student is not enrolled and spends more than five months abroad. Under these circumstances, the visa is not lawful because student visas are only valid for continuing students. After five months, the student is no longer considered a continuing student. Therefore, even if the visa stamp in the passport has not expired, it is invalid and, if presented at the port of entry, the officer can cancel it and deny admission. (If the break is less than five months, the student can return on the unexpired F-1 or M-1 visa with a valid I-20 form endorsed by the school.) http://www.greencardapply.com/news/news13/news13_0304.htm http://www.greencardapply.com http://www.greencardfamily.com

The "Legal" Immigration System Reform in The Comprehensive Immigration Reform

The "Legal" Immigration System Reform in The Comprehensive Immigration Reform The immigration reform debates and talks have focused on the three components: Border Security, Immigration Enforcement, and Legalization of Undocumented Immigrants. Why? Because these are key issues that have divided lawmakers, political leaders, and political parties. As time has gone by, there appears to be a compromise looming up between the right and the left through the left more or less accepting the right's issue of strengthening border security and immigration enforcement and the right agreeing to legalization within the context of keeping the legalized undocumented immigrants at the end of row of immigrant wait lines. What about other key component of reforming broken "legal" immigration system? Thus far, some pieces of such reform have been introduced in the form of piecemeal immigration bills. Additionally, both employment-based immigration advocates and family-based/other immigration advocates talked about their points here and there "sporadically." It is tragic that the legal immigration reform advocates have been so narrowly obsessed with reform of their interest only without discussing their issues within the framework of more broad and overall reform of the entire "legal" immigration system. Thus far, no one has come forward to discuss in the media the overall reform of the legal immigration system. The key issue that divides between the right and the left for the legal system reform involves the total immigrant quota the nation should accept. Obviously, the right will focus on keeping the number of immigrants at the current level or less and at a restrictive level, while the left will advocate to accept increase of the total annual numbers. The position of the right has been to reduce family-based immigration or non-employment-based immigration quota and increase the employment-based immigration quota within the level of keeping overall number within the current immigration system. The Bush comprehensive immigration reform represents such concept with the eventual goal of keeping the new total immigrant numbers at bay. Obviously, such proposal is not acceptable to the left that focuses on family unification and traditional concept of diversity in immigration system. For the reasons, the left will not accept reform of immigration reform unless the right is willing to accept increase in total immigrant numbers as the left also recognizes that the nation needs foreign talents and should accept increased number of such talents in one form or another. From the standpoint of the left, the position of the right presents insurmountable complicated power allocation issues as well as serious ethnic and racial implication issues as the reality is that no Europeans or other white races or ethnic group are immigrating to this country for the two reasons, among others: Their countries are well off economically and otherwise. The other reason is that they do not have close relatives in the United States who can sponsor their immigration under the current family-based immigration system. For the reasons, the right's push for reduction of family-based immigration system or diversity immigration naturally leads to implication of controlling immigrants from other ethnic or racial groups, typically so-called third world. The issue gets touchy and complicated under the circumstances that there are plenty of xenophobic sector of population that are concerned with growing imbalance of demographic distribution of the nation's population between the whites and nonwhites. For the foregoing reasons, reform of legal immigration system involves much more complicated and serious issues the nation and national leaders must address and seek a consensus in one way or another. The problem of the right to accept increase of employment-based immigration numbers without reducing the family-based or diversity immigrants may stem from a calculation that eventually such increase of employment-based immigrant numbers as well as keeping the family-based or diversity immigrant numbers will lead to a "reality" that it will lead to explosion of minority population in the sense that most of employment-based immigrants are coming from India and China and most of diversity immigrants are coming from Africa. There are already flood of immigrants coming from Asia and Central or South America based on the family-based immigration system. http://www.greencardapply.com/news/news13/news13_0305.htm http://www.greencardapply.com http://www.greencardfamily.com

The Importance of I-94 Expiration Date for Nonimmigrants

The Importance of I-94 Expiration Date for Nonimmigrants For those who are in the United States temporarily as nonimmigrants, the most important date to track is perhaps the expiration date of the I-94 arrival / departure card. The I-94 is a small card that is usually stapled into one's passport. It is obtained in one of two ways. It can be issued by a U.S. Customs and Border Protection (CBP) officer at the port of entry upon arrival in the United States. It can also be issued by the U.S. Citizenship and Immigration Services (USCIS) when one is granted an extension or change of nonimmigrant status from within the United States. If the USCIS issues an I-94, it will arrive attached to the bottom of an approval notice (I-797). This should be detached and placed in one's passport. Foreign nationals in F and J statuses do not have specific expiration dates noted on their I-94s, as they are admitted for duration of status (D/S). These individuals maintain their nonimmigrant statuses as long as they comply with the terms and conditions of their respective classifications during their programs. The I-94 card reflects how long one is permitted to stay in the United States, provided s/he complies with the terms of her/his status. Occasionally, the CBP or USCIS will issue an I-94 card with an erroneous date (either issuing an approval for a longer period than permitted by law or by granting an individual less time than appropriate). In either case, one should immediately obtain competent legal advice on the proper steps to correct the error. One should never rely upon an erroneous grant of more time in a nonimmigrant category than was requested or than one is eligible to receive. If the expiration date on the I-94 card is earlier than allowed by law, there is a risk for the individual remaining in the U.S. without correcting or otherwise addressing the error. It is important to remember that the expiration date on a visa stamp in the passport and the expiration date on the I-94 card are often not the same, as they serve two different purposes. The visa is an entry document, only. The time that one is actually allowed to remain in the United States after entry could be much shorter or longer than the duration of the visa. The appropriate amount of time an individual is allowed to remain in the U.S. is determined by the CBP at the port of entry. This is based on applicable law as well as the CBP's discretion. For example, an individual might be issued a 10-year, multiple-entry visitor visa (B-2) by the consulate. The fact that s/he has been granted a visa valid for ten years does not permit a stay of ten years on any single visit. Visitors are limited to the amount of time granted by the CBP - normally six months, but potentially less, depending on the circumstances. These expiration dates should be closely tracked. Overstaying the amount of time granted by CBP can have serious legal consequences on one's immigration status and eligibility for future immigration benefits. http://www.greencardapply.com/news/news13/news13_0312.htm http://www.greencardapply.com http://www.greencardfamily.com

Apply for a U.S. Green Card - National Interest Waiver

Apply for a U.S. Green Card - National Interest Waiver A National Interest Waiver, or NIW, is an employment-based, second preference immigration application. It is so named because it asks that the otherwise required Labor Certification requirement be waived "in the U.S. national interest." For applicants with an advanced degree - masters or above, there are three ideal options to apply for a Green Card. These options are in different classifications of Employment-based (EB) immigration, including: EB1A: Aliens with Extraordinary Ability in science, art, and business (or EB1-EA); EB1B: Outstanding Researchers and Professors (or EB1-OR); EB2 NIW: Members of Professions Holding Advanced Degrees Applying for a Waiver of Labor Certification in National Interest (or NIW). Many talented scientists and researchers should have better chances when they apply for an attractive job position. However often times, they failed just because they do not have a U.S. Green Card. Some people with advanced degree do not know how to apply for U.S. Green Card in above three preferred immigration categories, but instead, these people apply for a Labor Certification. However, choosing Labor Certification is not the best strategy for people who may qualify for one of the above three ideal immigration classifications. To qualify for EB2 NIW, an alien applicant needs to demonstrate that his or her work is in the National Interest of United States, and the alien applicant should have an advanced degree and have exceptional ability in sciences, arts or business. The National Interest Waiver Green Card application can either be filed by an alien applicant, or be sponsored by a U.S. employer. An alien applicant may also file additional Green Card applications in other categories, while a National Interest Waiver petition is pending. http://www.greencardapply.com/niw/niw_whatis.htm http://www.greencardapply.com http://www.greencardfamily.com

The Multinational executives or managers Green Card Application

The Multinational executives or managers Green Card Application The Immigration and Nationality Act (INA) permits multinational executives and managers to apply for U.S. permanent residence under the employment-based immigration first preference category (EB1). The employment-based first preference category are not subject to a Labor Certification requirement. The first preference immigration category consists of three subcategories, each has different eligibility requirements: a) Aliens with extraordinary ability in sciences, arts, education, business or athletics (EB-1A or EB1-EA); b) Outstanding professors or researchers (EB-1B or EB1-OR); c) Multinational executives or managers (EB-1C). In order to qualify as a multinational executive or manager under this category, during the three years preceding the application, the applicant must have been employed for at least one year by the same multinational firm or other business entity (affiliate, parent, subsidiary, or branch of the U.S. employer) that employs them in the United States. Furthermore, the applicant must seek to continue rendering services to the same employer in a managerial or executive capacity. The labor certification is not required for international managers and executives. The EB-1C petition requires the individual to have a permanent job offer from the U.S. company to work in an executive or managerial position. http://www.greencardapply.com/manager/mang_whatis.htm http://www.greencardapply.com http://www.greencardfamily.com

The L-1 Intracompany Transferee Visa Application

The L-1 intracompany transferee visa allows managers, executives, and especially knowledgeable employees who work outside the U.S. for a company that has an affiliated entity inside the U.S. to come to the U.S. and perform services for that entity. There are no limits on how many people can get L-1 visas every year. The U.S. Congress created the L-1 nonimmigrant visa category in 1970, primarily to assist multinational companies that experienced difficulties in bringing to the United States critical personnel temporarily from abroad. To be eligible for an L-1 visa, a foreign national normally must have been employed by the foreign company continuously for at least one year during the preceding three years in a managerial or executive position, or in a position where the individual gained specialized knowledge. http://www.greencardapply.com/l1visa/l1visa_whatis.htm The individual must be coming to the United States to provide services to the same employer or a branch office, subsidiary or affiliate. For this reason, L-1 visa holders are known as intracompany transferees. Executives and managers enter the United States on an L-1A visa. Employees with specialized knowledge enter the United States on an L-1B visa. To qualify for specialized knowledge, the employee must possess special knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge in the organization’s processes and procedures. Since the L-1 program’s creation, U.S. Congress has consistently responded to the needs of the business community by facilitating the process by which multinational companies import key personnel through the L-1 visa. Originally, the L-1 beneficiary had to have worked for the company abroad during the year immediately before filing the L-1 petition. A later amendment broadened the qualifying period to one year during the prior three year, thus permitting a former employee to rejoin the multinational company in the United States. A “blanket” L petition allows employers to have a petition on file that certifies that the organization meets the requirements of the blanket L visa program. http://www.greencardapply.com/l1visa/l1visa_whatis.htm http://www.greencardapply.com http://www.greencardfamily.com

Immediate Relatives of U.S. Citizens Do Not Need to Wait for Immigrant Visa Number

Immediate Relatives of U.S. Citizens Do Not Need to Wait for Immigrant Visa Number Question: I am a U.S. citizen, and my daughter is 16 years old who lives outside U.S. If I apply for U.S. Green Card for my daughter, does she need to wait for the available immigrant visa number? Answer: The immediate relatives are at the top of the list when it comes to qualifying for Green Cards and receiving them quickly, and do NOT need to wait for the available immigrant visa number. This category includes: spouses of U.S. citizens, including recent widows and widowers; unmarried people under age 21 with at least one U.S. citizen parent; parents of U.S. citizens, if the U.S. citizen child is at least age 21; stepchildren and stepparents of U.S. citizens, if the marriage creating the stepparent/stepchild relationship took place before the child's 18th birthday, and; adopted children of U.S. citizens, if the adoption took place before the child reached age 16. http://www.greencardfamily.com/question/question2012/question2012_1208.htm An unlimited number of Green Cards are available for immediate relatives whose U.S. citizen relatives petition for them -- applicants can get a Green Card as soon as they get through the paperwork and application process http://www.greencardapply.com http://www.greencardfamily.com