Immigration Visa Lawyer Blog

The United States Department of Homeland Security announced it will make changes in the F-1 and H-1B visa categories, which will likely benefit professionals from countries such as India. Changes would include providing work authorization for spouses of H-1B visa holders, 17-month extension of optional practical training (OPT) for certain F-1 international students, allow for additional part-time study for spouses of F-1 students, and allow outstanding professors and researchers to present a broader scope of evidence of academic achievement.

Under current immigration law, H-4 visa spouses of H-1B work visas holders are not permitted to work themselves. One of the proposed DHS regulations would change this. The new regulation would allow some spouses of H-1B visa holders to work legally while the H-1B visa holder spouses wait for their adjustment of status applications to be adjudicated. H-4 dependent spouses would be granted employment authorization when the principal H-1B visa holders begin the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the United States.

Currently, F-1 students may only work in optional practical training (OPT) for 12 months. DHS plans to provide 17 month extensions of OPT for those students with degrees in Science, Technology, Engineering and Mathematics (STEM).

Changes would also allow for additional part-time study for spouses of F-1 students, and would increase the number of Designated School Officials (DSOs) at DHS certified schools to enroll international students. Under current immigration regulation, spouses may only take part-time vocational or recreational classes. The proposed changes would permit spouses of F-1 students to enroll in additional academic classes on a part-time basis while the F-1 student is enrolled in full-time studies.

The DHS's stated purpose here is to reform administrative practices and ease the visa process for highly-skilled immigrants who want to come to the United States for work. This effort could help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

President Obama proposed to eliminate country-specific caps for certain immigrant visa categories to stimulate small-business growth. Country-specific immigrant caps are limits on the number of immigrant visa the United States will grant each year. According to a White House statement, the purpose is to attract more high skilled foreign workers, including entrepreneurs to the United States. Employers, especially those in the technology business, complain that these caps prevent them from hiring skilled workers and growing their companies in the United States.

Obama called for a comprehensive immigration reform bill, and if this is not politically possible, he will seek reforms in smaller steps. "If election-year politics keeps Congress from acting on a comprehensive plan, let's at least agree to stop expelling responsible young people who want to staff our labs, start new businesses and defend this country," Obama said.

The Department of Homeland Security said it will implement several measures to simplify the process for immigrant entrepreneurs to do business in the United States, and also to keep more foreign nationals with science and technology degrees from U.S. universities.

Obama said the proposal was a "symbol of how important it is for us to spur entrepreneurship, to help start-ups, to move aggressively so that we can ensure more companies that create most jobs in our economy are getting a leg up from various programs that we have in our government."

Opponents of Obama's plan point to the high unemployment rate in the United States and question why the government would be extending nonimmigrant visas for highly skilled workers while many US citizens and permanent residents are unemployed and are seeking those jobs.

Obama told reporters on Tuesday that he expects Congress to pass a bill this year. However, some members of Congress are likely to oppose the proposal.

Federal immigration officials said Wednesday that a United States born teenager was erroneously deported to Colombia from Houston last year. Jakadrien Larise Turner ran away from home in the fall of 2010 when she was just 14 years old. When the teen ran away, her grandmother said, she could not speak Spanish. The Texas teenager used an assumed identity, reinventing herself as Tika Lanay Cortez. When she was arrested for shoplifting last year, Tika lied to police about her identity and gave the fake name, and she claimed to be 21 years old. She had no documents to establish her identity, and authorities never suspected she was anyone other than who she claimed to be.

Unfortunately, her fake identity was the real identity of a 22 year old Colombian citizen who was in the United States illegally. The girl was sentenced as an adult to eight days in jail for the theft charge. Houston police ran her alias through ICE's Secure Communities program, which is designed to identify people in the country illegally, the name was flagged as belonging to an undocumented immigrant.

ICE officials state that they were contacted first by Houston authorities who told them they had an undocumented immigrant in their custody. ICE agents arrested Tika, who still claimed she was from Colombia, and federal immigration proceedings were held to deport her.

ICE said criminal database and fingerprint checks it carried out during the deportation process had ''revealed no information to invalidate'' the girl's claimed identity. In the weeks that followed, no one suspected she was anyone other than who she claimed to be, including the lawyer at her trial and the Colombian diplomat who met her before her deportation. During proceedings to have her removed from the U.S., Colombian officials interviewed her. Once she was in that country, she was given full Colombian citizenship. It is unclear when she learned to speak Spanish.

According to USCIS spokeswoman Barbara Gonzalez, "As is standard protocol, criminal database searches and biometric verification [fingerprint checks] were conducted and revealed no information to invalidate her claims." Gonzalez said "She was ultimately ordered removed from the U.S. by a Department of Justice immigration judge."

Tika was then deported to Colombia, where she remains today. She is currently being held in a Colombian detention facility, and Colombian officials have refused to release her, even after the U.S. Embassy in Bagota asked police to return her to U.S. authorities. No reason for her detention was given.

Many spouses and children of U.S. citizens qualify for legal immigration status, but are required to file the application overseas at their country of origin because they are unlawfully present in the U.S., also called "entering without inspection." If they were unlawfully present in the U.S. for more than 180 days, and then they go overseas, there is a law that bars them from reentering the U.S. for 3 years. This bar increases to 10 years if the illegal stay is longer than one year. This creates a catch-22 because if they leave the U.S. to apply for legal immigration status, they will be unable to reenter for 3 to 10 years. So, rather than go overseas to apply for legal status, many simply remain unlawfully in the U.S. to avoid being separated from their family for several years.

Many people who would be subject to the 3 or 10 year bar may be eligible for certain hardship waivers to allow them to return to the US after they apply for legal status overseas despite the 3 and 10 year bar. But critics say this process is lengthy and flawed. They are required to remain overseas until the waiver is granted before they can reenter the U.S., which is a process that can take from months to years, and there is no guarantee that the waiver will be granted. Therefore, many do not risk going overseas to apply for the waiver.

Even if a person has a legitimate relationship with a U.S. citizen, and is eligible to apply for legal immigration status, the current immigration law discourages that person from doing so. Instead, the current law actually encourages that person to remain in the United States illegally, or risk long term separation from the family.

Under the proposed rule change, announced today, foreign nationals in this situation could apply for the waiver while still in the United States. Then once the waiver is granted, they could depart and file for legal immigration status overseas at their country of origin, and then reenter the U.S. using the waiver.

This would eliminate the often prolonged wait faced by foreign nationals who are forced to wait overseas, and would encourage applicants to get legal status rather than remain unlawfully. "The goal is to substantially reduce the time that the U.S. citizen is separated from the spouse or child when that separation would yield an extreme hardship," USCIS Director Alejandro Mayorkas said. This streamlined process would eliminate much of the economic and other hardships that result from long separation from the family.

A campaign led by U.S. Citizenship and Immigration Services (USCIS) intends to educate immigrants, both documented and undocumented, regarding common scams purporting to be legitimate immigration services. The Unauthorized Practice of Immigration Law Initiative began in seven U.S. cities including Detroit, and includes advertisements and printed materials in both English and Spanish. Its website has educational materials available in at least fourteen languages. The USCIS has partnered with the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), the Federal Trade Commission (FTC), the Department of Justice (DOJ), and the Board of Immigration Appeals (BIA) for this campaign. They are also engaging state and local agencies to improve communication and facilitate enforcement of laws prohibiting immigration scams.

USCIS offers a list of common scams targeting immigrants. People using the title "Notario Publico" sometimes rely on a difference in the meaning of that title between the U.S. and Latin American countries in order to lure immigrants from those areas. A "notary public" in the U.S. has basic authority to witness signatures and administer some oaths. In some parts of Latin America, the title refers to someone with lawyer-like credentials and authority, leading some immigrants to incorrectly think they have the authority to render legal services.

Some sophisticated scammers set up websites offering guidance on immigration paperwork with URL's closely resembling official sites. The sites often directly copy design elements of government websites. The telltale sign of a scam website is a fee to download official immigration forms. All official forms are available for free on USCIS's website.

A particularly damaging type of scam involves the Department of State's diversity lottery, which makes 50,000 visas available each year to certain people from countries with low immigration rates. Scam services may claim to be able to help improve someone's chances of being selected in the lottery. Ohio's chapter of the League of United Latin American Citizens (LULAC) issued a warning regarding Ohio-based scams targeting applicants for the diversity lottery.

Another scam that may seem obvious to immigration attorneys can ensnare people who do not know about the many changes to federal immigration agencies over the past decade. Scammers claiming to work with the Immigration and Naturalization Service (INS) may prey on immigrants. The INS has not existed since 2003, when it became part of DHS and its functions were divided between USCIS, ICE, and other agencies.

Continue reading "Officials Launch Campaign to Raise Awareness of Immigration Scams" »

The Department of State Visa Bulletin took a giant leap today, advancing nine (9) months for the EB-2 preference category for persons from India and China. As it stands now, people from India and China who have a priority date of January 2009 or sooner will be able to file for their adjustment of status. This is great news for those who have been waiting with approved I-140 documents in the EB-2 preference category.

For all of the advancement in the EB-2 category, there was relatively little advancement in the EB-2 categories. If this trend continues, thousands of more EB-2 beneficiaries could be eligible to adjust in the coming months. Persons holding approved I-140 documents in the EB-3 categories may want to consider taking action to obtain a labor certification under the EB-2 preference category to take advantage of these developments.

Continue reading "January 2011 Visa Bulletin Takes a Giant Leap Forward" »

The process of priority date advancement in the visa bulletin, is a matter of mystery to the immigration community. Immigration lawyers wish they have a crystal ball with which they can advise clients when their I-485 applications can be filed. Immigrants are always apprehensive about their green card applications and they do not know when their priority dates might become current. For certain Indian and Chinese nationals, the wait can be daunting. The US Department of State has recently made predictions regarding priority date advancement for Indian and Chinese nationals. This article provides a summary of these predications.

It is important for Chinese and Indian EB-2 petitioners to file their I-485 applications in the first month of visa availability. Moreover, it would be wise for Indian nationals in the EB-3 category to take the steps necessary to file an EB-2 petition due to the long wait in priority dates. Priority dates will be advanced significantly for category EB-2 nationals of India and China but EB-3 category dates will remain stationary, according to the Chief of the Visa Control and Reporting Division of the Department of State, Charles Oppenheim.

For nationals of India and China in the EB-2 category, Mr. Oppenheim predicts that over the next few visa bulletins, priority dates could advance eight months by February 2012, then remain stationary through June 2012 when there is a possibility of retrogression. Mr. Oppenheim explained that retrogression is necessary to make sure that all the visa numbers are used before 9/30/12, otherwise they would be lost forever.

Priority dates are predicted to stay the same during 2011 for nationals of India in the EB-3 category, advancing only one month from December 2011 through June 2012. This is because India is limited to only 3,000 EB-3 based green cards per year and the queue is estimated at 210,000. If this were to remain, a 70 year wait is conceivable. There is legislation pending that could eliminate this limitation, which would cause priority dates to advance.

For nationals of China in the EB-3 category, priority dates are predicted to advance about three weeks per month during 2012, which would mean an advancement of four months between December 2011 and June 2012.

The prediction for the rest of the world is that EB-2 priority dates will remain current in 2012, and the prediction for the EB-3 is that dates will advance about four weeks per month, moving ahead almost six months between December 2011 and June 2012.

Mr. Oppenheim explained that priority date predictions are hard to make because the number of people in the queue is difficult to estimate due to the unknown number of spouses and minor children who will apply for a visa number with each foreign national.

Continue reading "Department Of State Makes Predictions Regarding EB-2 and EB-3 Priority Dates For India and China" »

The Department of State has issued its Visa Bulletin for December 2011. The new bulletin shows a five month jump in the priority date cutoff in the EB-2 category for foreign nationals born in India and China. Persons in this category with a priority date of March 15, 2008 or earlier are now eligible for immigrant visas. Because of the five month jump, some people in the EB-2 category are now current who may not have been expecting it. Others may be unaware completely. Persons with pending or approved I-140s in the EB-2 category should double check their priority dates and contact the Law Firm of Shihab and Associates with any questions about their current eligibility for lawful permanent residency.

Unfortunately, the EB-3 category for China and India born foreign nationals only advanced one month from the current priority dates in the November 2011 Visa Bulletin. The EB-3 category remains stagnant, with the backlog for Indian born persons now over nine years. Some people with labor certifications qualifying them for EB-3 classification may now have the requisite years of experience or an advanced degree allowing them to now pursue an EB-2 classification. Persons interested a possible "EB-2 upgrade" should contact the Law Firm of Shihab and Associates for a consultation to see if they qualify.

An investment group based in Columbus, Ohio has started a fund offering immigration assistance to international investors who intend to create jobs in Ohio. The fund offers help in obtaining legal permanent resident status, commonly known as a "green card," to individuals who meet the criteria under U.S. immigration law for investment immigration. This process can be complex and cumbersome, and requires the assistance of an experienced immigration attorney with knowledge of the investor system.

Central Ohio's government and business leaders have sought to bring international companies to the area as a way of stimulating the local economy, bringing in capital, and creating new jobs. A delegation of officials from local governments and the business community traveled to India last year on a trade mission to promote the region to foreign businesses.

Federal law allows a certain number of entrepreneurs and investors to immigrate to the United States, provided they meet certain criteria for eligibility. U.S. Citizenship and Immigration Services, the federal agency that handles immigration petitions and applications, may issue up to 10,000 visas, known as EB-5 visas, for investment-based immigrants per fiscal year. To qualify, a prospective investor must make an investment of $1 million, or at least $500,000 if the investment goes to a "targeted employment area," areas designated by the government in rural communities or in communities with high unemployment. Columbus, Ohio is currently designated as a "targeted employment area."

The investment must go to a "new commercial enterprise," currently defined as one created after November 29, 1990 or significantly restructured or reorganized by the investment. The investor must also be able to demonstrate both the intent and the ability to create at least ten permanent, full-time jobs for employees authorized to work in the United States. The investor must show admissibility as an immigrant, meaning that the investor is not subject to exclusion for any reason under the immigration statutes, which might include criminal history or health issues.

Continue reading "Ohio Business Investors Offer Help to Immigrants who Create Jobs" »

A federal court of appeals blocked some parts of Alabama's controversial new immigration law last week, but much of the law remains in effect. While this law only applies in the state of Alabama, it has influenced lawmakers and immigration reformers all over the country. Alabama's law pits the federal government, which has authority over immigration matters under the U.S. Constitution, against a state government seeking its own reform. The outcome of this dispute, and the enactment and enforcement of the Alabama law, will have nationwide impact on immigration matters.

The law affects many aspects of government operations, including law enforcement, education, and the civil court system. It also saddles Alabama law enforcement with a duty to check people's immigration statuses, and at times to determine whether a person is present in the United States legally. As any immigration attorney knows, this is a difficult determination to make, and law enforcement without specialized training in immigration laws may not be in the best position to do so. The Obama administration took Alabama to court to challenge its legal ability to legislate immigration matters, arguing that the Constitution grants that power exclusively to the federal government. A ruling from the Eleventh Circuit Court of Appeals in Atlanta last week gave partial victories to each side of the dispute.

The court's ruling blocks some of the law's more controversial provisions, but leaves many more in place. The court will review the constitutional questions presented in the case and make a more thorough ruling later. The court blocked the section requiring state officials to check the immigration status of public school students. It also blocked a provision creating a misdemeanor offense for immigrants who willfully fail "to complete or carry an alien registration card," something critics described as allowing law enforcement to demand papers from people they suspect of being undocumented, with few guidelines on how to make that determination.

Provisions of the law remaining in force include one that requires law enforcement, during lawful stops or arrests, to try to determine a person's immigration status if they suspect the person is undocumented. Another provision still in force bars state courts from enforcing contracts that involve undocumented immigrants, and another makes it a felony for undocumented immigrants to enter into "business transactions" in the state. This last provision may make it illegal for someone to apply for a driver's license or even to hook up utility services.

Continue reading "Appeals Court Blocks Portions of Controversial Alabama Immigration Law" »

The US Citizenship & Immigration Services (USCIS) recently announced that it will be altering decades' worth of a well established procedure which has Columbus Ohio immigration lawyers and their clients confused and angry.

For as far back as I can remember in the 18 plus years I have been practicing immigration law, the USCIS's established procedure called for mailing approval notices relative to employment based non-immigrant visas (such as H-1B visas) directly to the attorney who had filed a signed Notice of Entry as an Attorney of Record along with the petition. That procedure allowed the attorney to carefully monitor the progress of the case during the USCIS adjudication process as well as post the approval of the case itself. Simply put, the prior procedure worked well.

Now, the USCIS wants to fix a procedure which was never broke. The new procedure now calls for mailing the approval notice for such non-immigrant visa petitions (also known as the I-797 Notice of Action) directly to the sponsoring employers, instead to the attorney of record. US immigration lawyers believe that this is yet another way the USCIS seeks to drive a wedge between them and their clients, the petitioning employers.

The American Immigration Lawyers Association has sharply criticized the new policy thereby requesting the USCIS to restore the prior procedure. The USCIS held a teleconference on October 12, 2011 to review this new procedure. Interestingly, in its announcement for the teleconference, the USCIS offered an unusual way to have immigration attorneys continue to receive the I-797 approval notices by including on the petition for non-immigrant worker (Form I-129) the attorney's address in the filed where the company's address must be entered. This, as the USCIS explained, will cause the USCIS to mail the approval notice to the attorney instead of to the company. The USCIS warned, however, that it utilizes the Validation Instrument for Business Enterprises (VIBE) process, which relies on the business address of the employer to validate whether the petition is filed fraudulently. Using the attorney's address on Form I-129 may disrupt the VIBE process, the USCIS explains and advised attorneys to enclose a separate sheet along with the petition indicating the true address of the employer in order to avoid such discrepancy (without any guarantees).

What a disaster!!! In other words, the USCIS is encouraging attorneys to intentionally misrepresent the address of the employer on Form I-129 and to risk having the employer's identity validated in order to do her job of correctly monitor the progress of the case and advise the client efficiently.

I join my immigration attorney colleagues in stating that this is an ill-advised policy for many reasons. but, before delving into the problems that I see with this new procedure, I would like to share with you the steps that we normally undertake once we receive an employment based non-immigrant visa approval notice on behalf of our client's employees. For the last 10 years in my practice, I have utilized an intricate on-line document storage, data gathering and reminder system integrated into a proprietary web-based processing portal. Upon receipt of an approval notice, we scan and upload it to our immigration processing portal. An instant reminder is created in our system which will alert us to contact the client six (6) months prior to the expiration of the employee's status. Then an email is generated to the client and the employee informing them that their case has been approved. Finally, the approval notice is mailed to the employee providing them with tips about maintaining their status and advising them what to do in the event they need to travel. (Our law firm was named finalist in innovation by TechColumbus in 2008. We now utilize a vendor-based system which we call ShihabEDGE.)

With the approval notices now going to employers, these valuable practices will be compromised. Unless the employer has in-house counsel versed in immigration-related matters (which is very rare), the employer does not possess the skills or resources to monitor the expiration status of their employees' status and/or to advise them regarding the procedures in obtaining visa stamping.

We must remember that the non-immigrant visa approval notice in most scenarios has THE ONLY PROOF of the foreign nationals legal status in the United States. It must be surrendered to the foreign national promptly. with some large employers, the approval notice may arrive on the wrong desk and the recipient may not know what to do with the approval notice or who in the large organization should dispose of it. The attorney on the other hand has direct access to the foreign national and can ascertain that she receives it timely.

The recent policy by USCIS is ill advised; it wastes time and increases the employer's costs. I urge all employers to contact their congressmen to put pressure on the USCIS to reveres this unnecessary procedure. Tell the USCIS that the prior system worked just fine and there is no reason to drive a wedge between the attorney and the employers they represent. If it ain't broke, don't fix it!

In these times of economic uncertainty, it seems that many in the American public target employment based immigration as one of the many causes of high unemployment rates in the United States. However, overwhelming evidence shows that the immigration of high skilled workers through the H-1B and PERM programs actually improves the economy. Much of the unemployment problems in the United States and specifically Columbus, Ohio stem from a mismatch of skilled persons available for high tech jobs.

In a recent interview, Alan Greenspan placed his support behind supporting the immigration of persons who hold higher degrees from American colleges and Universities. In this interview, Mr. Greenspan cautioned America against artificially creating more low skill jobs to try and reduce unemployment. In Mr. Greenspan's opinion, the true path to raising the standard of living in America is to open the workforce to more skilled workers.

A recent article in the Columbus Dispatch illustrates the point that many high skilled jobs go unfilled because of a lack of persons possessing skills to fill those jobs. As more non-tech businesses integrate technology into their business models, the demand for highly skilled workers is only going to increase. This demand is also expected to be compounded by the move of American employers to the international based financial reporting standards. Clearly there is a demand for skilled workers in Columbus, Ohio as well as the United States as a whole.

One way to meet this demand is to allow more high skilled immigrants to obtain temporary and permanent employment through the H-1B and PERM programs. Allowing more of these jobs to be filled will produce more tax revenue as well as add more consumers to the United States market. Some of the greatest economic minds as well as the raw evidence support the notion that immigration of high skilled workers helps rather than hurts the American economy.

On April 7, 2011, the USCIS published on its website a page entitled "Questions about Same or Similar Occupational Classifications Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21)." The issuance of this new page implies renewed USCIS position in the adjudication of I-485 portability applications pursuant to AC21. This is significant since there has recently been a significant increase in the incidence of "job hopping" on the part of many aliens who are currently in the I-485 stage awaiting visa availability. So, what does this mean for those aliens currently in the I-485 stage who wish to take advantage of the portability provision?

Prior to the introduction of AC21, foreign national beneficiaries of employment based permanent residence applications, were forced to remain with their sponsoring employers until their I-485 applications were adjudicated. As a result abuse of employees, who endured unfavorable working conditions for the sake of their pending green card applications, was widely reported. In cases where certain Indian and Mainland China born nationals were forced to wait out the per-country immigrant visa limitations prior to filing their I-485 applications, their indentured servitude with their current employer were even more painful. Making matters worse, those employees who reached their six years on H-1B visa prior to the filing of their I-485 applications were forced to surrender their American Dream and return to their home country for a one year wait prior to embarking on their immigration journey to the US.

What is the I-485 Portability Provision?

Congress realized the inequities caused by the prior state of immigration laws and passed AC21 which allowed the mobility of not only H-1B visa holders who wished to change employers, but also introduced what is now known as the "I-485 portability provision" of AC21. This provision was introduced by section 106(c) which is very brief and created ambiguity regarding its application. The statutory portability provision allows for "job flexibility" premised on "lengthy adjudication" of adjustment of status applications. It states "a petition ......for an individual" shall remain valid with respect to a new job offer, if such individual has filed an application for adjustment of status which remains unadjudicated for 180 days and the new job is in the "same or similar occupational classification" as the job for which the petition was originally filed.
Subsequent to the Introduction of AC21, the USCIS and its predecessor agencies, the Bureau of Citizenship & Immigration Services as well as the Immigration & Naturalization Service issued several memoranda and other publications which sought to clarify some of the ambiguous provisions of the statute. We shall examine all of these guidance publications in brevity.

The June 19, 2001 Yates Memo - The No-Guidance "Guidance Memo"

This memo simply reintroduced the statutory language without much in the way of explanation. It is worthy to note that July 31, 2002, a guidance memo issued by the USCIS allowed for the concurrent filing of the I-140 immigrant petition and I-485 adjustment applications. The portability provisions did not contemplate such concurrent filing because it speaks about continuing validity of the I-140 petition which presupposes that such petition would have been approved prior to the filing of the I-485 adjustment application and would therefore continue to be valid with the changed employment. What then be the fate of an I-485 that remains unadjudicated for more than 180 days but where the concurrently filed I-140 petition also remains unadjudicated? These questions would linger for 4 more years.

The portability provisions also created another ambiguity. The employment based immigrant petitions do not require the foreign national to be employed by the petitioning employer. Rather, it requires such individual to join the petitioning employer upon the approval of the I-485 application. Hence, the foreign national requires a "job offer" not an actual job to keep the green card application alive. But the statute speaks about increased "job flexibility" and continuing validity of the immigrant petition in the case of a "new job." Did the statute create a deviation from well established legal principles in that it requires the foreign national to have an actual job instead of a job offer? How does it work?

Eventual guidance memoranda do not provide explicit clarification on this issue; however, such guidance memoranda make it clear that a "new job" is intended to mean a new "job offer."

The August 3, 2003 Yates Guidance Memorandum - When Do Revocations of Approved I-140 petitions Hurt and When are they Ineffectual?

This memorandum, by far is the most useful guidance relative to the "portability of an I-485 adjustment application" vis-à-vis an attempt by an the petitioning employer to revoke the approved I-140 immigrant worker petition. You might wonder, why would an employer attempt to revoke an already approved I-140? There are three main reasons: 1) some employers retaliate against a departing employees for variety of reasons; 2) some employees carry a large number of approved I-140s which hinders their abilities to obtain approval on subsequent I-140s; hence they revoke departing employees' approved I-140 petitions not to retaliate against them, but to make room for I-140 approvals for existing employees. Lastly 3) some employers believe that they have a legal obligation to revoke the approved I-140 for employees who are no longer employed by them.

No matter what the reason for the revocation of the I-140, the August 3, 2003 guidance memorandum that an attempt to revoke an approved I-140 petition by an employer is effective when: a) at any time before the I-485 is filed; and 2) before 180 days from the filing of the I-485 petition. It also confirms that an attempt by an employer to revoke an approved I-140 petition after the passage of 180 days of the filing of form I-485 adjustment application is ineffectual and the I-140 petition remains approved toward a new job offer. This will obviously solidify the alien/beneficiary's endeavor to continue on (or port) his green card application with an employer other than the one who originally sponsored his petition.

What is I-140 Vesting?

The practical effect of this rule is to prevent an alien beneficiary from changing employment during the green card process until the occurrence of these two occurrences: 1) the approval of the I-140 immigrant petition; and 2) the passage 180 days after the filing of the of I-485 adjustment application. It is only when these two facts occur will the alien/beneficiary's approved I-140 completely vests in him. Vesting is when the alien beneficiary is able to safely change his employment and preserves the green card process initiated by a prior employer.

As will be seen in part 2 of this article, subsequent memoranda by the USCIS greatly expanded its interpretation of this provision. Tune in form Part II of my article very soon.

If you filed an employment-based adjustment of status (I-485) application between July 1, 2007 and August 17, 2007, you were definitely not alone. Approximately 325,000 adjustment (I-485) applications were filed during this period. This is because the visa bulletin briefly became current for all employment-based visa categories, except "other workers." Since the visa bulletin retrogressed, many of these adjustment applications reverted to a "pending" status. Many of our clients have asked what they can do in this frustrating situation.

Adjustment (I-485) Switching: The Permissible Line-Jumping
This article addresses the issues of transferring I-485 applications (in a process called "I-485 switching," transferring adjustment applications, or adjustment conversion) to a new or subsequent family or employment-based immigrant visa petition. Thousands of people are eligible for this benefit and didn't even know it! These procedures are invaluable to aleviate the backlog created by the onslought of I-485 applications sent to the Service Centers in 2007. Properly done, you can dig your case out of the "blizzard of I-485" saving yourself and the Service years of pending paperwork and frustrating processing delays.

Transferring Adjustment Applications to New Family or Employment Based Immigrant Visa Petitions
The AFM under section 23.2(l) provides several examples of when an applicant for adjustment under one category (preference or immediate relative) will prefer to have his or her application considered under another category. These examples include:

1. An alien who originally applied for adjustment based on an approved I-140 petition and married a U.S. citizen while the I-485 was pending, but who now prefers to adjust based on an I-130 filed by the new spouse;
2. An alien who originally applied for adjustment as the spouse of a U.S. citizen, but now prefers to be granted adjustment under an employment-based category in order to avoid having to deal with the conditional residency requirements of section 216 of the Act;
3. A Cuban national who applied for adjustment under section 202 of NACARA, but who now prefers to be granted adjustment under the Cuban Adjustment Act in order to receive the "rollback" provisions of the latter.

What this means is that an existing application for adjustment can be converted to another based on a different I-140 or I-130 for an immediate relative petition, which could include a new priority date or visa classification. Therefore, it is possible to reverse the principal/derivative classification and process and application sooner based on the spouse's priority date or classification. Exceptions are found in cases involving automatic revocation of employment-based petitions, fraud, or the denial of the original I-140 petition. If the exceptions do not apply to your case, then read on.

Guidelines: How to Transfer an Adjustment Application
There is no specific form for requesting a transfer of adjustment, but it must be done in writing. You do not need to pay a new fee or file a new I-485 application. If USCIS erroneously advises you that a new fee is required, you may obtain a fee refund. To make your request, you should provide clear information to the Service Center so it can make a determination that an earlier priority date or different visa classification can be applied to your pending adjustment (I-485) application. You must be able to demonstrate that you continuously maintained eligibility for the application originally filed. This is important in the section 245(c) and 245(k) interplay.

Continue reading "Adjustment (I-485) Backlog: Tips to Dig Out of the "Blizzard of I-485"" »

If you have filed for a green card (I-485) and submitted a request for work authorization (I-765) and advanced parole travel document (I-131), and you must travel before your I-131 can be adjudicated in the normal processing time, you can request expedited processing of the I-131. This article addresses those expedited I-131 procedures:

You MUST Make a Request
Typically, anyone who files Form I-485 in the U.S. also files Forms I-765 and I-131 concurrently with the Form I-485. If you have found that you must travel before your Advanced Parole Travel Document Form I-131 can be adjudicated within normal processing times, you can call the USCIS National Customer Service Center (NCSC) or make an info pass appointment at your local field office. Here in Columbus, Ohio, infopass appointments are simple to make and are usually scheduled within 3-5 days.

Making the Expedited Advanced Parole Request with the USCIS Field Office
Once you make an infopass appointment at the local field office, that office will determine whether you have has your fingerprints taken at an Application Support Center (ASC). If you haven't yet had your biometrics, the field office will schedule a walk-in appointment. The field office will then notify the office where the I-131 Travel Document/Request for Advanced Parole is pending, either the service center or the National Benefits Center ("NBC"), and request expedited handling. If the Field Office Director grants the request, he or she will inform the center that he or she has authorized expedited handling of the application and that the requisite biometrics have been captured.

Making the Expedited Advanced Parole Request Contact USCIS at 1-800-375-5283
If you contact the NCSC, the customer support representative will make a "service request" and forward the expedite request to the center having jurisdiction over the application. If the center determines that adjudication of the application should be expedited, it will determine whether you have already been to the ASC for biometric collection and, if not, schedule a walk-in appointment. You can contact both the NCSC and schedule an infopass appointment to make a request.

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