I’ve been receiving a lot of inquiries whether legal permanent residents or greencard holders can sponsor their spouses to live or stay in the United States. Most of these inquiries involve a foreign national who is in the U.S. on a tourist visa and had met a legal permanent resident who offered him or her marriage. They want to know if the foreign national can stay in the U.S if they get married. While a legal permanent resident can sponsor or petition his or her foreign national spouse, this does not give the foreign national spouse the status of an immediate relative. Therefore, the foreign spouse cannot stay in the U.S. while waiting for the legal permanent resident spouse to become a U.S. citizen.
Only U.S. citizens have means of bringing their foreign husbands or wives to the US to live. The U.S. citizen can “sponsor” his or her spouse’s immigrant visa for entry to the United States. First, an immigrant petition has to be filed with USCIS. After USCIS, the National Visa Center and the US Embassy complete all the necessary administrative processing the foreign spouse will be granted an immigrant visa. The foreign spouse will receive an IR1 or a CR1 visa. An IR-1 (IR stands for “Immediate Relative”) visa allows your spouse to immigrate to the U.S. A CR1 Visa (CR stands for “Conditional Residency”) will be to the foreign national if the marriage is less than 2 years old. It is conditional for two years.
A K-3 visa is relatively new and the fastest way of getting your spouse to live in the U.S. It is a non-immigrant and is granted normally within a few months. You should use the K3 visa to start the process outside of the US, then travel to the US to complete the immigration process. In this case, the application must be made in the country where the marriage took place. If your marriage took place in the US, your spouse must apply for a K3 visa through the US Embassy in the country of his/her residence. After the visa has been issued, the spouse can travel to the US.
To obtain a visa for a foreign spouse, the following requirements must be met: 1) the marriage must be legal; 2) the U.S. citizen must be a resident of the U.S., and 3) the U.S. citizen must be at least 18 years old. If the U.S. citizen is currently living outside the U.S., he or she must submit the immigrant petition to either the local office of USCIS or directly to the US Embassy where the foreign spouse resides. If the spouses are already in the U.S., the immigrant petition and adjustment of status can be submitted simultaneously with USCIS. Spouses of U.S. citizens, and the spouse’s children, can come to the United States on nonimmigrant visas and wait in the United States to complete the process.
Thursday, December 24, 2009
H-1B CAP REACHED
U.S. Citizenship and Immigration Services (USCIS) announced on December 22, 2009, that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. USCIS is hereby notifying the public that Dec. 21, 2009 is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.
The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.
USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Dec. 21, 2009. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.
H-1B in General: U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers.
The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.
USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Dec. 21, 2009. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.
H-1B in General: U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers.
Wednesday, December 23, 2009
IMMIGRATION CONSEQUENCES OF UNLAWFUL PRESENCE
Unlawful presence in the United States is perhaps the most widely known among the grounds of inadmissibility or denial of visa application. There are no regulations interpreting the concept of unlawful presence. All we have are policy statements from the Department of Homeland Security. Generally speaking, a foreign national who is admitted to the United States on a nonimmigrant visa or in parole status until a certain date and who remains in the United States past the expiration date is unlawfully present. The expiration date is indicated on Form I-94. One who enters the United States without inspection is unlawfully present as well.
Is the foreign national considered out of status when the expiration date on Form I-94 has expired, but he has a pending application for extension of stay? Unlawful presence does not accrue during the gap between the original I-94 and the approval of an application for extension of stay, even if the application was filed after the original I-94 expired. The approval is retroactive to the date of the expiration of the previous status. If the application for extension is ultimately denied, unlawful presence does accrue while the application for extension was pending. Provided, however, that the application for extension was filed before the I-94 expired and it is not frivolous or unworthy of serious attention.
Can unlawful presence accrue even before the expiration of the I-94? The answer is “Yes”. This happens when the immigration judge or USCIS determines that there was a status violation such as accepting employment while on a visitor/tourist visa. The unlawful presence begins to accrue as of the date the order, whether or not the decision is appealed. For F-1 student and J-1 trainee visa holders, who are normally admitted to the United States for duration of status or D/S, violation of their status is the only way they can become unlawfully present. That is because their I-94 does not indicate the date when their status will expire.
When does unlawful presence cause inadmissibility. The three-year bar states that a noncitizen is inadmissible for three years if he or she was unlawfully present in the United States for a period of more than 180 days but less than 1 year. The 180 days of unlawful presence must be during one continuous period. Therefore, if one is unlawfully present in the United States for 179 days, then left, reentered, and was unlawfully present for another 179 days, he or she would not be inadmissible based on unlawful presence. It is important to know that 180 days is not the same as six months. One needs to be precise in counting the days of unlawful presence in order to avoid being barred from returning to the United States. The 10-year bar states that the noncitizen is inadmissible for ten years if he or she has been unlawfully present for one year or more AND again seeks admission within 10 years of the date of his or her departure or removal from the United States. Like the 3-year-bar, the unlawful presence must have occurred during a single continuous stay in the United States. The permanent 10-year bar applies to a noncitizen who has been unlawfully present in the United States for an aggregate period of more than one year, and who enters or attempts to re-enter the United States without being inspected or admitted. Unlike the 3- and 10-year bars, the period of unlawful presence is the aggregate of all periods of unlawful presence. For example, one was unlawfully present in the United States for six months, then left, reentered and was unlawfully present for another six months, then left and attempted to reenter without inspection. The foreign national is subject to the permanent 10-year bar.
The good news is the Attorney General may waive inadmissibility due to unlawful presence. For the 3- or 10-year bars, the Attorney General may waive inadmissibility if the noncitizen is the spouse or son or daughter of a U.S. citizen or legal permanent resident and it is established that the refusal of admission to such noncitizen would result in extreme hardship to the citizen or legal permanent resident spouse or parent. The permanent 10-year bar may be waived as well but the noncitizen must wait for 10 years from the date of last departure from the United States before he or she can apply for the waiver. The prior 10 years must be spent outside the United States. They should document their residency outside the United States because this is crucial evidence when they apply for the waiver.
Is the foreign national considered out of status when the expiration date on Form I-94 has expired, but he has a pending application for extension of stay? Unlawful presence does not accrue during the gap between the original I-94 and the approval of an application for extension of stay, even if the application was filed after the original I-94 expired. The approval is retroactive to the date of the expiration of the previous status. If the application for extension is ultimately denied, unlawful presence does accrue while the application for extension was pending. Provided, however, that the application for extension was filed before the I-94 expired and it is not frivolous or unworthy of serious attention.
Can unlawful presence accrue even before the expiration of the I-94? The answer is “Yes”. This happens when the immigration judge or USCIS determines that there was a status violation such as accepting employment while on a visitor/tourist visa. The unlawful presence begins to accrue as of the date the order, whether or not the decision is appealed. For F-1 student and J-1 trainee visa holders, who are normally admitted to the United States for duration of status or D/S, violation of their status is the only way they can become unlawfully present. That is because their I-94 does not indicate the date when their status will expire.
When does unlawful presence cause inadmissibility. The three-year bar states that a noncitizen is inadmissible for three years if he or she was unlawfully present in the United States for a period of more than 180 days but less than 1 year. The 180 days of unlawful presence must be during one continuous period. Therefore, if one is unlawfully present in the United States for 179 days, then left, reentered, and was unlawfully present for another 179 days, he or she would not be inadmissible based on unlawful presence. It is important to know that 180 days is not the same as six months. One needs to be precise in counting the days of unlawful presence in order to avoid being barred from returning to the United States. The 10-year bar states that the noncitizen is inadmissible for ten years if he or she has been unlawfully present for one year or more AND again seeks admission within 10 years of the date of his or her departure or removal from the United States. Like the 3-year-bar, the unlawful presence must have occurred during a single continuous stay in the United States. The permanent 10-year bar applies to a noncitizen who has been unlawfully present in the United States for an aggregate period of more than one year, and who enters or attempts to re-enter the United States without being inspected or admitted. Unlike the 3- and 10-year bars, the period of unlawful presence is the aggregate of all periods of unlawful presence. For example, one was unlawfully present in the United States for six months, then left, reentered and was unlawfully present for another six months, then left and attempted to reenter without inspection. The foreign national is subject to the permanent 10-year bar.
The good news is the Attorney General may waive inadmissibility due to unlawful presence. For the 3- or 10-year bars, the Attorney General may waive inadmissibility if the noncitizen is the spouse or son or daughter of a U.S. citizen or legal permanent resident and it is established that the refusal of admission to such noncitizen would result in extreme hardship to the citizen or legal permanent resident spouse or parent. The permanent 10-year bar may be waived as well but the noncitizen must wait for 10 years from the date of last departure from the United States before he or she can apply for the waiver. The prior 10 years must be spent outside the United States. They should document their residency outside the United States because this is crucial evidence when they apply for the waiver.
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