More Options for Conditional Permanent Residents with Marital Problems - PART 2

1. Waiver Requests Filed Prior to Marriage Termination

The recent memo, issued by Donald Neufeld, Acting Associate Director, and dated April 3, 2009 (released in July 2009), addresses the lack of a category for those who married in good faith, but are separated or in the process of divorce. The memo instructs USCIS officers who review these cases to issue requests for evidence (RFEs) if they encounter I-751s requesting waiver of the joint requirement, if the couple was still legally married at the time of the filing. The RFE has an 87-day period for response and requests proof of termination of the marriage.

If the foreign national can respond to the RFE within the allowed timeframe, providing proof of the termination of the marriage in the form of a divorce decree or annulment, then the case can be approved. This is a significant variation from the general immigration requirements that an individual must be eligible for the benefit requested at the time of filing. This is one situation in which a slow processing time may work to the advantage of the foreign national, as it may provide enough time to finalize a divorce.

2. Joint Filings with Troubled Marriages :

Another variation with I-751 filings involves couples who file jointly, but are legally separated or in the process of divorce. The USCIS reviews these cases carefully, as they view this as a potential indication that the marriage may not have been bona fide at its inception. In these cases, the USCIS will issue RFEs with 87-days for response.

This RFE will request a copy of documentation proving termination of the marriage, and a request to have the joint petition treated as a request for a waiver of the joint filing. This allows the foreign national to obtain the waiver, if the marriage has been terminated, without having to re-file the I-751. Previously, a new filing would have been required.

If there is no response to the RFE, or the response does not establish that the marriage is terminated, the USCIS will adjudicate it as a joint petition. The result will depend on the evidence of bona fide marriage. The case may be forwarded to a USCIS field office for an in-person interview to determine if it was bona fide at the time when the parties entered into the marriage.

http://www.greencardfamily.com/news/news2009/news2009_1210.htm


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Legislation of Comprehensive Immigration Reform

http://www.greencardapply.com/news/news09/news09_1219.htm

Representative Luis Gutierrez (D-IL) introduced legislation on December 15, 2009, titled the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP).

The bill addresses a wide range of key immigration areas. Comprehensive Immigration Reform is intended as an overarching rewrite of a laundry list of pervasive immigration problem areas. It is an effort to address these issues in a cohesive manner, rather than in a piecemeal fashion. This includes many matters of concern to our readers, such as enhancements to the legal immigration system, as well as revisions to the H1B and L-1 programs. Some of these areas of interest are highlighted here.

Border Security, Detention, and Enforcement : The legislative proposal includes provisions for increased border protection and more effective enforcement. These efforts include enhanced use of technology, data sharing, and interagency cooperation. It addresses the need for improving detention conditions and better screening to avoid apprehending and detaining those who are lawfully present in the United States. It also seeks to repeal controversial state-level immigration enforcement programs, and restore this as a federal matter.

Employment Verification: The bill provides for an employment verification system requiring employers to verify work authorization of new employees. It contains civil penalties for noncompliance and criminal penalties for knowingly hiring unauthorized workers.

Employment-Based Immigration Benefits Reforms: The bill would allow family- and employment-based immigrant visa numbers that went unused between 1992 and 2008 to be "recaptured." It would prevent future loss of numbers by allowing them to roll over to the next year. The bill also proposes to increase the percentage of immigrant visa numbers that may be used each year by a given country. Some categories of highly-skilled workers would be exempt from the numerical limits.

The bill also proposes to permit nonimmigrant skilled workers to file applications for adjustment of status (I-485s), if otherwise eligible, even if their priority dates are not yet current. This would have significant ramifications for many of our readers, like the ability to obtain the employment authorization document (EAD) and possibly enjoying AC21 portability benefits.

Earned Legalization for Undocumented Foreign Nationals: The bill addresses the highly controversial area of relief for undocumented foreign nationals. The relief proposed is in the form of a conditional nonimmigrant status. This status could be valid for up to six years. Thereafter, these individuals potentially could apply for permanent residence. In an effort to avoid giving these individuals an advantage over others who entered lawfully and complied with the legal immigration system, no permanent benefits would be available before six years, unless existing immigrant backlogs are cleared. Additionally, these cases would not deplete the annual allocation of immigrant visa numbers.

H1B, H2B, and L-1 Reform: The bill contains significant revisions to the current H1B, H2B, and L-1 temporary worker programs. It proposes establishing a Commission on Immigration and Labor Markets to research and provide recommendations on the flow of workers into the United States. Included in the H1B changes would be requirements for recruitment of U.S. workers. The U.S. Department of Labor would be given additional enforcement authority. There would be audit authority given to the U.S. Department of Homeland Security in connection with L-1 employers.

Integration of New Americans: Finally, the bill contains proposals to improve the process of naturalization to U.S. citizenship, and to encourage naturalization. This would include grants to community-based programs in English-training and legal support aimed at facilitating naturalization.

http://www.greencardapply.com/news/news09/news09_1219.htm