Articles Posted in Green Card

snapshot3.pngImmigration to the United States is a complex and lengthy process (for most). Sometimes, when this topic is discussed, a “line” to receive a green card is spoken of. Though simplistic, this characterization is not incorrect. The fates of most immigration cases are tied to the Visa Bulletin, which represents the closest thing to the idea of the immigration line. The Bulletin is a monthly publication of the U.S. State Department (DOS), and shortly after it is released, we publish an analysis of it at www.shihabimmigrationfirm.com/visa-bulletin.html. It is the result of several government agencies’ efforts to reconcile immigration demand with relevant laws and regulations. The way the Bulletin works is confusing for many (to say the least), and its results have made life a little more difficult for most that seek to live in the United States. It is our hope that these two articles will clear up some questions about how the Visa Bulletin works–and why waiting times are as long as they are.

Law dictates that 366,000 foreign nationals may receive permanent residence, otherwise referred to as receiving a green card, each year. This cap does not apply to those claiming an “immediate relative” relationship to a U.S. citizen or other uncapped exemption. The limit is split into 226,000 for family-sponsored (F) cases and 140,000 for employment-based (EB) ones. These limits are divided further based on the legal avenue one wishes to use in obtaining permanent residence. These legal avenues are numbered and called “preference categories,” with “first preference,” etc. Each preference category has its own limit, and when a lower numbered category (which denotes higher “preference”) doesn’t use all of its assigned green cards, the remaining ones fall to the next category. (If the bottom category doesn’t use all its green cards, they are offered to the first category, and so on.) On top of this, no more than 7% of them can be given to immigrants from any one country.

The implications of the 7% limit are subtle, but when one considers that two countries (India and China) together contain over a third of the world’s population, its effect is clear. People from those countries aren’t going to have smooth sailing in U.S. immigration. There are four nationalities of immigrant consistently up against this limit (or are considered “oversubscribed”): China, India, Mexico, and the Philippines. Some immigrants from those countries have been waiting over 20 years for permanent residence, though one shouldn’t think that there’s a pre-ordained waiting period for these people. How long an immigrant waits pertains only, almost always, to how many other immigrants are attempting to obtain permanent residence from their home country–and how many are using the same preference category.

calendar.jpgIn 2013, we saw some interesting changes in processing times, from rapid progressions in some visa categories to retrogression in others. Using the latest Visa Bulletin for January 2014 along with the predictions made by Charles Oppenheim of the Visa Office, our team has come up with some of our own predictions for processing times for the upcoming year. Here is a highlight of the Visa Bulletin predictions for 2014:

The Good

  • It is possible that the cut-off dates for India EB-2 visas will return to pre-retrogression dates (circa December 2008) in August or September of 2014.
  • china eb2 eb3 chart compressed.pdf.jpg
    Since the June 2013 Visa Bulletin was released, the priority date cut-off for Chinese nationals filing under the EB-3 immigrant visa category has been more recent than the priority date cut-off for the EB-2 visa category. In fact, the cut-off date for EB-3 visas for Chinese nationals has progressed nearly four years since June 2013, from September 1, 2008 to April 1, 2012, thanks in large part to a dramatic 18 month jump between August and September of 2013. Contrastingly, cut-off dates for the EB-2 category have lingered around the second half of 2008, progressing only five months, to December 8, 2008, between June 2013 and January 2014. In October 2013, Charles Oppenheim of the Visa Office predicted that the cut-off dates for EB-3 visas for Chinese nationals will likely continue to progress more rapidly than the EB-2 visa category.

    With this in mind, employers who have already petitioned for Chinese nationals under EB-2 or those who are planning to file for an employment-based immigrant visa in the near future should consider alternative options that could accelerate their path the permanent residence. For instance, employers who have petitioned for Chinese nationals and have a pending or approved EB-2 immigrant petition may subsequently file under the EB-3 category for the same beneficiary (“downgrade”). Employers who seek to file a new Form I-140, Immigrant Petition for an Alien Worker from China may also concurrently file under both EB-2 and EB-3 visa categories.

    This is possible because the federal regulation at 8 CFR §204.5(e) indicates that when a beneficiary has more than one approved petition, either because of concurrent EB-2/EB-3 filing or because of subsequent “upgrading” from EB-3 to EB-2, the beneficiary’s priority date is the earliest priority date assigned. Similarly, though less common, if a petitioner originally files under EB-2 and subsequently files under EB-3, the beneficiary will be assigned the earlier priority date.

    1392509_rainbow_flag.jpgEver since the Supreme Court ruled last month that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, same-sex married couples have been eligible to apply for green cards based upon marriage to a US citizen or US permanent resident of the same-sex. The US Citizenship and Immigration Services (USCIS) has just issued an announcement clarifying the rules that it uses to adjudicate same-sex marriage based cases. The announcement seems to indicate that virtually every area of immigration law, the USCIS will treat same-sex marriages exactly the same as opposite-sex marriages.

    Green cards are now available for same-sex spouses of US citizens and US permanent residents Continue reading

    1409592_gavel_2.jpgIn order to grasp a true understanding of the criteria a foreign national entrepreneur must meet in order to qualify for an immigration visa, it is extremely helpful to study relevant court case law that illustrate the real-world application of the black letter law. The USCIS Administrative Appeals Office issued a recent and important ruling on June 13, 2013 in a case involving an EB-1 immigrant visa petition for alien worker as a multinational executive or manager.

    This case is important because the AAO’s decision here is favorable toward foreign national entrepreneurs who may seem ineligible based upon the black letter law, yet actually do meet the necessary criteria upon closer review.
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    829079_wedding-ring.jpgWill the Obama administration allow same-sex married spouses to get green cards based on marriage to a US citizen or resident? All signs point to yes. The US Supreme Court made headlines last Wednesday when it struck down the Defense of Marriage Act (DOMA) and granted same-sex married couples access to the same benefits that opposite-sex married couples enjoy. Given Obama’s original campaign promise to uphold DOMA, there may have been some doubt as to how the Obama administration would actually administer the change. But same-sex couples can now breathe a sigh of relief thanks to the administration’s currently announced public stance.

    DOMA, which was enacted in 1996 and signed into law by President Bill Clinton, has since been the obstacle that has prevented same-sex married couples from getting federal benefits that are available to opposite-sex married couples. This includes immigration benefits as well because DOMA is the reason why same-sex foreign nationals have been banned from getting green cards based upon marriage to a US citizen or permanent resident.
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    1038827_u_s__supreme_court_1.jpgWhat is the Impact of this decision on Immigration?

    For the first time in history, Gay and lesbian couples will be eligible to get green cards for their foreign national spouses as a result of a recent US Supreme Court ruling that will allow same-sex couples access to federal benefits. The Court declared in its opinion last Wednesday June 26, 2013, that section 3 of the Defense of Marriage Act (DOMA) is in violation of the Fifth Amendment and therefore unconstitutional. DOMA is a federal statute that forbids the US government from recognizing same-sex marriages for federal purposes, even when such marriages are recognized in same-sex couples’ home states.

    The term “marriage” is not defined in the Immigration and Nationality Act (INA). However, according to US Department of State Foreign Affairs Manual at 9 FAM 40.1 N1, the validity of a marriage for immigration purposes is defined by section 3 of DOMA, a statute that forbids the federal government from recognizing same-sex marriage.
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    334225_press_conference.jpgAfter you file the Application to Register Permanent Residence or Adjust Status Form I-485, some months later you will be scheduled to meet with a USCIS immigration officer for an interview. Some people are nervous about attending the interview for fear that the officer may decide to deny the application. Being nervous may be a result of uncertainty of what to expect. Therefore, this article explains the USCIS interview process in greater detail so that you can know what to expect and be prepared.

    What is the purpose of the USCIS interview?
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    296223_empty_pocket_1.jpgYour I-485 application to adjust status to permanent residence can be denied if you are deemed to be a “public charge.” Under immigration law, you are a public charge if you have received public cash assistance to maintain your income or you were institutionalized for long-term care at the government’s expense.

    Public benefits that will make you a public charge Continue reading