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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Options for Conditional Permanent Residents with Marital Problems - Part 1

The USCIS recently issued a memorandum providing more options for the filing of the required I-751 form requesting removal of the conditions on residency. Conditional permanent resident status is given to individuals who receive permanent residence (green card) status via a recent marriage to a U.S. citizen. The change in procedures involves situations in which a divorce is in process or in which a divorce is finalized after the I-751 filing. The change addresses some long-standing problems and provides more options for conditional permanent residents who are in troubled marriages.

If a marriage has been less than two years in duration at the time permanent residence is granted, the status of the foreign national spouse then is "conditional." The condition is that it expires within two years, unless the Form I-751 is filed, at the appropriate time, to request that the conditions be removed. If the I-751 is granted, the foreign national spouse becomes a permanent resident without any conditions.

The conditional status is an anti-fraud measure and is necessary to provide updated proof of a bona fide marriage in support of the I-751 form. This form can be filed jointly, with both husband and wife signing. Alternatively, it is possible to request a waiver of the joint filing requirement, if the marriage was entered into in good faith, but was subsequently terminated. It is also possible to obtain a waiver if the marriage was entered into in good faith, but there was abuse and, separately, it is possible to request a waiver if removal of the foreign national spouse would result in extreme hardship.

For many years, to satisfy conditions for filing the I-751, it was necessary to either file jointly OR to qualify for a waiver request at the time of filing. This created a serious problem for individuals whose marriages were troubled. If the U.S. citizen spouse was unwilling to sign the I-751, but the couple was still legally married, there often was no way to properly file the I-751 when needed. Absent the joint filing, it was necessary to have a basis for a waiver request. As explained above, waivers require marriage termination (divorce), abuse, or extreme hardship.

This is a common problem since the I-751 must be filed before the two years of conditional residency expires. Generally, it can be filed up to 90 days in advance of that point. If a marriage encounters problems, it is often not possible to divorce without the couple first being separated for an extended period. (Legal requirements for separation prior to being granted a divorce vary from state to state, with common timeframes ranging from six months to two years.)

Couples sometimes separate and go through a period of months when they decide whether they can resolve their problems, or if divorce is to be pursued. Thus, many individuals find themselves in marital limbo when the I-751 is due to be filed. In the past, unless the couple was still amicable, so that the U.S. citizen spouse would sign the form, the foreign national could not file, and then the conditional status would terminate.


http://www.greencardfamily.com/news/news2009/news2009_1112.htm



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New Workplace Audits to Hold Employers Accountable

Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure-alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.

"ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces," said Assistant Secretary Morton. "We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules."

The 1,000 businesses served with audit notices this week were selected for inspection as a result of investigative leads and intelligence and because of the business' connection to public safety and national security-for example, privately owned critical infrastructure and key resources. The names and locations of the businesses will not be released at this time due to the ongoing, law enforcement sensitive nature of these audits.

Audits involve a comprehensive review of Form I-9s, which employers are required to complete and retain for each individual hired in the United States. I-9 forms require employers to review and record each individual's identity and work eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to that specific individual.

Protecting employment opportunities for the nation's lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all available civil and administrative tools, including audits. Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law.

In April, DHS issued updated worksite enforcement guidance emphasizing ICE's major enforcement priorities-specifically focusing on dangerous criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers. In this strategy, ICE identified form I-9 audits as the most important administrative tool in building criminal cases and bringing employers into compliance with the law.


http://www.greencardapply.com/news/news09/news09_1202.htm


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The Multiple Approved I-140 Petitions

There are a large number of I-485 applicants with multiple approved I-140 petitions with different priority dates and different preference classifications. The key for survival in the Green Card journey other than the opportunity to change of employment under AC-21 Act involves many different and extremely confusing legal tools.

One is 'transfer of another approved I-140 to the pending I-485." The other is "transfer of pending I-485 applications from the I-140 petitions which was concurrently filed with the I-485 application to another stand-alone approved I-140 petition. The third is "recapture of priority date (P/D)" with or without amendment of the petition.

These three legal tools are complicated enough, but there are additional variants that affect these legal tools. One is the question underlying I-140 petition: whether I-485 petition was filed with earlier priority date I-140 petition or with later priority date I-140 petition. The other is whether multiple I-140 petitions were filed by the same employer or different employers.

The following are the basis of the immigration rules:

1) Earlier priority date is retained and can be recaptured regardless of change of employer;

2) Recapture of priority date does not accompany transfer of the preference classification of the earlier petition;

3) Change of preference classification is available only by transfer of the favorable I-140 petition to the pending I-485 or transfer of pending I-485 application to the favorable I-140 petition;

4) The approved I-140 petition or pending I-485 cannot be transferred unless the visa number is current for the favorable approved I-140 petition and both favorable and unfavorable I-140 petitions must be "valid" at the time of transfer.


http://www.greencardapply.com/news/news09/news09_1210.htm


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Increased H-1B Worksite Visits and I-9 Audits

Confirmation recently has come from the U.S. Citizenship and Immigration Services (USCIS) that 25,000 more onsite administrative visits to H1B-sponsoring employers are being conducted. These site visits began in July 2009 and are part of an effort to address violations within the H1B system. Separately, in November 2009, the Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE) announced the initiation of 1,000 new workplace audits.

The announcement indicated that ICE issued 1,000 notices of inspection (NOIs) to employers associated with, what ICE characterizes as, critical infrastructure. Thus, employers should be prepared for this higher level of careful government review of their employment practices related to immigration.

USCIS Director Alejandro Mayorkas verified an increase in worksite visits to H1B employers as part of recently-released correspondence with U.S. Senator Charles Grassley (R-Iowa), an ardent opponent of the H1B program. The site visit program began in July 2009, and includes a plan to conduct 25,000 such visits in fiscal year (FY) 2010. This is approximately five times the number of site visits that were conducted in FY2009.

The site visits verify basic facts relevant to the validity of the H1B petition. This includes verification of the existence of the employment location, and whether the foreign national is performing the duties described in the H1B petition at the work location listed on the labor condition application (LCA) filed with the H1B petition. Also verified is payment of the prevailing wage salary, as required by the LCA.

At a November 19, 2009 U.S. Department of Homeland Security program, Ronald Atkinson, Chief of Staff of USCIS's Fraud Detection and National Security (FDNS) office, described three types of site visits currently being conducted. First, site visits may be a part of the FDNS's Risk Assessment Program Fraud Study, which often includes the random selection of approved H1B petitions for review. Second, Targeted Site Visits are conducted if fraud is already suspected. In these cases, an FDNS officer or a contractor will visit the worksite to ask questions, and, if desired, review documents.

Lastly, Administrative Site Visits occur in both religious worker and H1B programs and are often conducted by contractors who have little or no knowledge of immigration law. These contractors have a set list of issues to check, including whether the facility appears to be consistent with the business that filed the H1B petition.

They will try to make contact with a representative of the organization and obtain information about the operation of the business, and the position held by the beneficiary. Their inquiries are intended to determine the legitimacy of the petition and the business operation.

Since ICE announced its new enforcement strategies in April 2009, as described in our June 5, 2009 NewsBrief, I-9s, Indictments and ICE Enforcement, 45 businesses and 47 individuals have been debarred from participation in immigration programs. ICE issued 142 notices of intent to fine (NIFs) for nearly $16 million dollars in fines and 45 final orders, totaling nearly $800,000 in fines and forfeitures. This represents a significant increase over 2008 for all measures.

The 654 I-9 audits announced in July 2009 resulted in the identification of 14,000 documents ICE has classified as suspect. This is a rate of 16 percent of all documents reviewed. Thus far, the 654 audits have resulted in 61 NIFs, totaling more than $2.3 million dollars. There are 267 more cases under consideration for fines. ICE also closed 326 of the audit cases, as the businesses were either in compliance or found appropriate to receive only a warning.


http://www.greencardapply.com/news/news10/news10_0104.htm

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Issues of K-3 Visa for Spouse of U.S. Citizen

http://www.greencardfamily.com/news/news2010/news2010_0709.htm
The USCIS Ombudsman's office provides an important mechanism for the general public to address many problems with the USCIS procedures and policy. The January 31, 2008 teleconference revealed common problems with the processing of K-3 visas. As a result, the USCIS is obligated to respond to these concerns and report back to the CIS Ombudsman on the steps it intends to take to improve its services.

According to many participants in the January 31st teleconference, complications can arise because adjudication of Form I-129F sometimes takes longer than the adjudication of Form I-130. Once the I-130 is approved, the I-129F may be administratively closed. One participant reported that he called the USCIS National Customer Service line on different occasions to inquire about this process and received different answers from the USCIS representatives.

This inconsistent advice makes it difficult to understand if an I-129F filing, in fact, is matched with the related I-130 and if it may be administratively closed if the I-130 is approved. If this is the case, it leaves the beneficiary with the only option of applying for an immigrant visa instead of a K-3 visa, resulting in a waste of time, money, and effort in filing the K-3.

Several participants reported that, depending on which consulate is processing a spouse's K-3 visa, the wait time to get a visa appointment may be significant. The length of the wait time often depends on the date the petitioner's I-129F filing was received by the USCIS. Currently, the I-129F receipt date determines the date of the filing.

The problem arises when the petitioner files an I-130 and has to wait several months for this filing to be receipted. Only after it is receipted can s/he then file the I-129F petition. This causes unnecessary delays that prevent many families from reuniting for long periods of time, thereby negating the very purpose of the K-3 filing. One caller shared his experience of filing an I-129F with a complete copy of the I-130 petition even before the I-130 receipt is issued. Again, the USCIS has not indicated if this is an acceptable practice.

The USCIS Ombudsman's office provides an important mechanism for the general public to address many problems with the USCIS procedures and policy. The January 31, 2008 teleconference revealed common problems with the processing of K-3 visas. As a result, the USCIS is obligated to respond to these concerns and report back to the CIS Ombudsman on the steps it intends to take to improve its services.

http://www.greencardfamily.com/news/news2010/news2010_0709.htm

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