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

The F-1 Student's OPT Interim Final Rule and the "Cap Gap Relief"

The F-1 Student's OPT Interim Final Rule and the "Cap Gap Relief" The U.S. Department of Homeland Security (DHS) recently issued a regulation entitled Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions. This regulation was published in the Federal Register and became effective on April 8, 2008. This is an interim final rule that is open for public comments until June 8, 2009. As this rule considerably changes current procedures and eligibility criteria for Optional Practical Training (OPT), which is of considerable importance to a large number of students in F-1 status as well as many U.S. employers. The first condition is that the employer timely filed an H1B case (i.e. while the prospective employee is still in F-1 status pursuant to the grant of OPT) with a request for Change of Status. (It should be noted that the regulation does not provide for any cap gap relief to those whose employers filed H1B petitions requesting consular processing as opposed to change of status. Since the rule was published after the deadline to receive H1B petitions for this coming 2009 fiscal year, it penalizes those who decided to depart the U.S. instead of those who attempted to file a change of status.) The other two requirements are that the H1B petition indicates an October 1st start date for employment and that the student otherwise must not have violated his or her status. If all three of the above conditions are met, status and work authorization shall automatically continue until October 1st or until the H1B cap case is rejected (including not being selected in the random lottery), denied or revoked, whichever is earlier. The cap gap provision automatically extends the F-2 status of F-1 family members. The new rule has not changed the basic requirements for OPT that apply to all F-1 students. According to these rules, an F-1 student can apply for OPT to engage in practical training directly related to the student's major area of study. The student cannot start employment until an Employment Authorization Document (EAD) is issued by the USCIS. http://www.greencardfamily.com/news/news2012/news2012_0521.htm OPT can be granted either pre-completion or post-completion of the education. The pre-completion OPT rules remain unchanged, permitting OPT during annual vacation or other times when school is not in session, as long as the student remains enrolled and intends to continue with classes the next time classes begin. The student may also qualify for OPT while school is in session if OPT does not exceed 20 hours per week. http://www.greencardapply.com http://www.greencardfamily.com

Immigration Options for Victims of Domestic Violence and Other Crimes

Immigration Options for Victims of Domestic Violence and Other Crimes Any individual who is a victim of domestic violence should seek help. There is help available in escaping from abuse. The laws in the United States offer far more protection against domestic violence than in many other parts of the world. A self-petition under the Violence Against Women Act (VAWA) may be filed by spouses and children of abusive U.S. citizens or lawful permanent residents. This is appropriate if there has been physical violence and/or extreme cruelty. These applications are confidential, and are not revealed to the abusers or others. http://www.greencardfamily.com/news/news2012/news2012_1209.htm The benefits are not limited to abused wives and daughters, despite the name of the law. Abused husbands and sons are also eligible. The Form I-360 is available on the USCIS Web Site. If approved, the victim can obtain legal permanent residency (green card status) without the involvement of the abuser. For spouses of U.S. citizens who are in removal (formerly deportation) proceedings, it may be possible to apply for cancellation of removal under VAWA. These foreign nationals must show that they have been victims of battery or extreme cruelty, have been in the United States for more than 3 years, and that the removal will cause them extreme hardship. There are potentially other options available for immigration relief, even for those who are not married to U.S. citizens or lawful permanent residents. It is often possible to obtain one's own independent immigration status or relief. Organizations that assist victims of domestic violence can often direct individuals to immigration attorneys who offer free or pro bono services, or reduced fee services. http://www.greencardapply.com http://www.greencardfamily.com

What Is the "Age-Out" for Me If I Reach Age 21 While My I-485 Application is Still Pending?

What Is the "Age-Out" for Me If I Reach Age 21 While My I-485 Application is Still Pending? Question: My father is a U.S. permanent resident (Green Card holder), and he just applied Green Card for me. I am 19 years old at this time. What is the "Age-Out" for me if I reach age 21 while my I-485 application is still pending? Answer: A child of a Permanent Resident who is seeking permanent residency and who will turn 21 will age out and lose his/her original eligibility. In most cases, if the child turns 21 before the adjustment case is approved, the case moves into another preference category, which can result in a delay in the processing time. http://www.greencardfamily.com/question/question2012/question2012_1209.htm For example, for a daughter of a permanent resident, if the parent's petition for her immigration was approved. She applied for I-485 adjustment of status while she was still 20 and unmarried. She was categorized as Family Based Immigration in the Second Preference A. If she reaches 21 while her application for I-485 adjustment is pending. She ages out and loses her eligibility as Family Base Immigration in the Second Preference A. If she stays unmarried, she now is qualified for Family Based Immigration in the Second Preference B. (Section 2A: Spouses and unmarried children of a green card holder, so long as the children are younger than age 21. Section 2B: Unmarried children age 21 or older of a green card holder) http://www.greencardapply.com http://www.greencardfamily.com

Department of Labor's Audits for Labor Certification Payment Irregularities

Department of Labor's Audits for Labor Certification Payment Irregularities The audit process is used by the U.S. Department of Labor (DOL) to confirm that employers are complying with PERM requirements and that the attestations in PERM labor certifications are correct. Cases are sometimes selected for audit at random. In other cases, the DOL targets specific case concerns. A recent DOL trend in PERM audits is occurring that requires sworn statements pertaining to the exchange of certain improper payments between the employee (or any other third party) and the employer. The following discusses such audits to clarify this matter for our readers. Employers and sponsored employees should be aware of the possibility that they could receive a request for a sworn declaration regarding PERM-related payment matters. It is important to comply with the applicable regulation, and to be able to honestly attest to full compliance in response to an audit. In addition to requests for documentation pertaining to recruitment efforts and related subjects, the DOL has begun issuing requests for declarations from the employer and foreign national regarding details of payment for the labor certification. Under current regulations, costs associated with PERM labor preparation and filing must be paid by the employer. http://www.greencardapply.com/news/news12/news12_1221.htm There are limited exceptions for certain established third-party relationships. The payment-related audits require employers and sponsored workers to sign declarations, under penalty of perjury, verifying whether any payments were provided to the employer either by the employee or by any other third party related to obtaining the PERM. The audit requests specify that such fees include the employer's attorney’s fees, advertisement costs, administrative fees, and any other associated costs or fees. The audit further specifies that such payments include wage concessions, kickbacks, bribes or in-kind payments, as well as free labor and/or any other form of payment for services essential to the labor certification process. http://www.greencardapply.com http://www.greencardfamily.com

Unauthorized Aliens Residing in the United States: Estimates Since 1986 to Present

Unauthorized Aliens Residing in the United States: Estimates Since 1986 to Present Estimates derived from the March Supplement of the U.S. Census Bureau’s Current Population Survey (CPS) indicate that the unauthorized resident alien population (commonly referred to as illegal aliens) rose from 3.2 million in 1986 to 12.4 million in 2007, before leveling off at 11.1 million in 2011. The estimated number of unauthorized aliens had dropped to 1.9 million in 1988 following passage of a 1986 law that legalized several million unauthorized aliens. Jeffrey Passel, a demographer with the Pew Hispanic Research Center, has been involved in making these estimations since he worked at the U.S. Bureau of the Census in the 1980s. Similarly, the Department of Homeland Security’s Office of Immigration Statistics (OIS) reported an estimated 11.5 million unauthorized alien residents as of January 2011, up from 8.5 million in January 2000. The OIS estimated that the unauthorized resident alien population in the United States increased by 37% over the period 2000 to 2008, before leveling off since 2009. The OIS estimated that 6.8 million of the unauthorized alien residents in 2011 were from Mexico. About 33% of unauthorized residents in 2011 were estimated to have entered the United States since 2000, but the rate of illegal entry appears to be slowing. The OIS based its estimates on data from the U.S. Census Bureau’s American Community Survey. http://www.greencardapply.com/news/news12/news12_1222.htm Although increased border security, a record number of alien removals, and high unemployment, among other factors, have depressed the levels of illegal migration in recent years, the number of unauthorized aliens residing in the United States remains sizeable. Research suggests that various factors have contributed to the ebb and flow of unauthorized resident aliens, and that the increase is often attributed to the “push-pull” of prosperity-fueled job opportunities in the United States in contrast to limited job opportunities in the sending countries. Accordingly, the economic recession that began in December 2007 may have curbed the migration of unauthorized aliens, particularly because sectors that traditionally rely on unauthorized aliens, such as construction, services, and hospitality, have been especially hard hit. http://www.greencardapply.com http://www.greencardfamily.com

New Filing Option for Canadian TN Visa - Employers to File the Form I-129 Petition

New Filing Option for Canadian TN Visa - Employers to File the Form I-129 Petition The U.S. Citizenship and Immigration Services (USCIS) announced a new filing option for Canadian TN applicants. As of October 1, 2012, it became possible for employers to file the petition seeking TN classification for eligible Canadians who are outside of the United States (Form I-129). As we explain, this option is an addition to the existing TN procedures. Presumably, this change will help certain Canadian citizens whose cases may be a bit more complex. CBP will no longer be conducting the initial review and decision in such cases. Rather, the applicants will be able to present a USCIS approval notice at designated pre-clearance or preflight inspection stations. Hopefully, CBP will give appropriate deference to the USCIS decision. This will make the process a considerably smoother for such TN applicants seeking to enter the United States. Historically, most Canadian TN cases involved applications made at the border. Canadian citizens are visa exempt for most nonimmigrant categories, including the TN category. Thus, such individuals do not need to make an application at a U.S. consulate for a visa prior to requesting entry to the United States in the TN classification. http://www.greencardapply.com/news/news13/news13_0101.htm Additionally, unlike many other types of cases, there was no requirement or mechanism to obtain an approval from the USCIS prior to the request for admission. For Canadians, the TN process for an individual outside of the U.S., therefore, was limited to presenting the appropriate proof of eligibility for TN classification to the U.S. Customs and Border Protection (CBP) at a U.S. port of entry. More information on this process is available on the CBP WebSite. As of October 1, 2012, there is a new option regarding TN processing for Canadians. Employers have an option of filing the I-129 nonimmigrant petition with the USCIS for Canadian citizens who are outside of the United States. Individuals whose employers choose to follow this procedure, need to appear after approval at either designated pre-clearance / preflight inspection stations or designated U.S. ports of entry. It is necessary to present the approval notice of the TN classification, as well as all supporting documentation and proof of Canadian citizenship. http://www.greencardapply.com http://www.greencardfamily.com

Operational Guidance for EB-5 Cases Involving Tenant-Occupancy

USCIS Memorandum on Operational Guidance for EB-5 Cases Involving Tenant-Occupancy In this type of Regional Center cases, the USCIS required evidence that the projected jobs attributable to prospective tenants (which would occupy the commercial space created by the EB-5 capital) would represent newly created jobs, and not jobs that the tenant had merely relocated from another location. This determination is necessary to assess whether there is a reasonable causal link between the EB-5 enterprise and the job creation that would allow for the attribution of the tenant jobs to the EB-5 enterprise. In regional center cases that rely on tenant occupancy models, as in any other regional center cases, USCIS requires evidence that the claimed jobs result, directly or indirectly, from the economic activity of the EB-5 commercial enterprise. Jobs that are merely re-located rather than created do not count. With respect to indirect job creation, the task for the applicants and petitioners is to project the number of newly created jobs that would not have been created but for the economic activity of the EB-5 commercial enterprise. In making that projection, they are to use economically and statistically valid forecasting tools. In the cases of creation of indirect tenant jobs, USCIS will generally require an evaluation of the verifiable detail provided and the overall reasonableness of the methodology as presented. http://www.greencardapply.com/news/news13/news13_0102.htm To claim credit for tenant jobs, applicants and petitioners may present evidence backed by reasonable methods that map a specific amount of direct, imputed, or subsidized investment to such new jobs. However, for applicants and petitioners that instead seek to utilize a facilitation-based approach, USCIS will not require an equity or direct financial connection between the EB-5 capital investment and the employees of prospective tenants. Rather, facilitation-based tenant job credit will depend on the extent to which applicants or petitioners can demonstrate that the economic benefits provided by a specific space project will remove a significant market-based constraint. One way applicants and petitioners can make this showing is to indicate how a specific space project will correct market imperfections and generate net new labor demand and income that will result in a specified prospective number of tenant jobs that will locate in that space. In high unemployment areas in which new projects are not likely to significantly displace other income or labor, applicants and petitioners should generally indicate how a specific project will fill an existing investment void in that area to generate new demand for the tenant business. http://www.greencardapply.com http://www.greencardfamily.com

O-1 Visa Is Based on a Person’s Individual Qualifications

O-1 Visa Is Based on a Person’s Individual Qualifications Question: In my home country, our group of motion pictures once received a national award. Can I apply for O-1 visa based on this national acclaim as a leading member of the group? Answer: O-1 visas are available to people who have not only a job offer in the U.S., but proven extraordinary ability in the sciences, arts, education, business, or athletics. In general, the person must have received national or international acclaim in a particular field, or if working in motion pictures or television productions, have a demonstrated record of extraordinary achievement. http://www.greencardapply.com/question/question12/question12_1221.htm O-1 visas can be given only on the basis of a person’s individual qualifications. Being a members of a group or team will not, by itself without other achievements, qualify someone for an O-1 visa. http://www.greencardapply.com http://www.greencardfamily.com

Challenges and Minimum Requirements When Employer Seeks Labor Certification in EB2

Challenges and Minimum Requirements When Employer Seeks Labor Certification in EB2 Question: As an employer, we want to sponsor an alien employee for Green Card in EB2 category. This employee has a bachelor’s degree plus four years experience in the field. Can we apply Green Card for him in EB2? and what other minimum requirements we need to know? Thank you very much. Answer: U.S. employers planning to sponsor immigrants in category EB-2 must take particular care when listing the minimum requirements for the position. The employer must clearly state that the minimum requirements are a master’s degree, or a bachelor’s degree plus five years’ progressive post-bachelor’s degree experience. http://www.greencardapply.com/question/question13/question13_0101.htm For example, if the employer says that the minimum requirement is either a master’s degree or a bachelor’s degree plus a mere two years’ experience, that will not be enough to gain approval in EB2. Also, employer just makes this statement alone will not be enough, and the employer will need to prove that the job truly does require such progressive experience. http://www.greencardapply.com http://www.greencardfamily.com