Author: tancincowp

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Immigration Round Table

Stateside Waiver Applicable to Undocumented Spouse of a U.S. Citizen

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Dear Atty. Lou,

I heard about a proposed provisional waiver and would like to know if this will apply to my husband. He came here in the United States without inspection (jumped ship) in 2001. We got married here. We were never married in the Philippines because I was petitioned single but we were gifted with 3 kids all born in the Philippines. They all came with me as an immigrant.

I filed a petition for my husband (I-130) and this petition was approved in 2006. During that time I was still a permanent resident. I just got my citizenship last 2008. My question is this- if the proposed provisional waiver will approved, will my husband be qualified to apply even if I was not a citizen yet when his petition got approved? If so, are there any things to be considered or to be done while waiting for this waiver to get publish and approved?

Thank you very much Atty. Lou. Any answer given is highly appreciated.

Sandra

Dear Sandra,

The January 6, 2012 announcement of the Department of Homeland Security is a Notice of Intent to accept and adjudicate “waiver” applications within the United States for those who have incurred unlawful presence. It applies to immediate relatives of U.S. citizens with approved petitions.

Generally, immediate relatives, referring to spouses, minor children and parents of U.S. citizens, may file for adjustment of status based on an approved petition. Unfortunately, there are certain immediate relatives who cannot adjust and these individuals include those who entered without inspection at the time of their last entry and had incurred unlawful presence. Those who are not allowed to adjust the status in the United States are asked to leave the country to get their visa at the U.S. consular post abroad.  If they have been out of status for more than 6 months or 1 year, they will be subjected to the 3-10 year bars. This means that they will not be able to return to the country for 3-10 years depending on the number of months they spent in unlawful status.

Recognizing the problem, the Department of Homeland Security announced its proposal for individuals who may be barred from re-entering. The new proposal will allow those subject to the bars to file their waiver of unlawful presence within the United States. The waiver must be accompanied by proof indicating extreme hardship to U.S. citizen spouse or parent. Only after getting a favorable decision on the waiver will the individual need to depart to get their visa at the U.S. Embassy in Manila.

Applications filed at the consular offices of the United States embassy is usually protracted especially for those that do not have U.S.C.I.S offices in their post. In some embassies where they already have U.S.C.I.S officers adjudicating, some jurisdictions will still take several months, or even years, to decide on these waiver cases. The length of time it takes for the waiver to be processed is the same length of time the individual applicant is separated from his family waiting anxiously for the decision. To address the problem, the proposed policy now allows filing of the waiver first within the United before departing to get the visa abroad. This is now referred to as the “stateside waiver.”

In your case husband’s case Sandra, since he is already in possession of an approved petition, he may avail of the benefits of this new regulation. It will not matter whether you were a green card holder at the time you initially filed the petition. Filing the waiver within the United States is just the first step. To include in this waiver are substantial supporting documents to show extreme hardship to you as the U.S. citizen spouse. If the waiver of unlawful presence is approved, your husband can depart to obtain the visa at the U.S. embassy in Manila.

It is important to note the U.S. consular officer is not prevented from denying the visa based on other grounds of visa refusal such as criminal convictions and prior deportations. The reason is that the policy will only waive one of the many grounds of denial for issuance of visa. It only waives “unlawful presence”. A careful assessment of your husband’s case by a legal professional must be made before his departure for purposes of obtaining his visa abroad to avoid complications and unexpected consequence.

I hope this information is helpful.

Atty. Lou

(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 1 888 930 0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)

Categories
Updates

Visa Requests from China and Brazil Increase in FY 2012

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The Department of State (DOS) announces that visa processing from Brazil
and China has increased by more than 50 percent in the first quarter of
FY 2012, as compared to the same time period in FY 2011. At the same
time, DOS notes, wait times for visa interviews have decreased in both
countries. Wait times for interviews in China are down to just two days
at any of the Department’s five visa processing posts. In Brazil, wait
times are down to 15 days in Rio de Janeiro and 6 days in Brasilia.

In order to meet growing demands for visas in China and Brazil, the
Department is deploying additional personnel and expanding visa sections
in those areas. In China, officers adjudicated over 250,000 visas in
the first quarter of FY 2012. In Brazil, nearly 280,000 visas were
adjudicated in that same time period. Every 65 additional international
visitors to the U.S. supports one travel and tourism-related job; an
increase in visitors from these two nations translates directly into an
improved economic outlook for that industry.

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Updates

USCIS Changes Filing Locations for Form I-130, the Petition for Alien Relative

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USCIS has changed the filing location for Form I-130, the Petition for
Alien Relative. As of January 1, 2012, domestic petitioners should mail
their stand-alone I-30 applications to either the Chicago or Phoenix
Lockbox, depending on where they reside. This change will enable USCIS
to balance workloads between the two lockbox locations and more
effectively process I-130 forms.

USCIS notes that there will be no change in filing locations for
petitioners submitting Form I-130 along with Form I-485, the Application
to Register Permanent Residence or Adjust Status. Petitioners
submitting these two forms together should continue to mail them to the
Chicago Lockbox. Petitioners residing in a country with a USCIS office
may either mail their I-130 forms to the Chicago Lockbox facility or may
file their forms at the USCIS office with jurisdiction over the area
where they live.

Phoenix Lockbox

USPS deliveries
USCIS
ATTN: I-130
PO Box 21700
Phoenix, AZ 85036

Express and courier deliveries
USCIS
Attn: I-130
1820 E. Skyharbor Circle S
Suite 100
Phoenix, AZ 85034

Chicago Lockbox

USPS deliveries
USCIS
P.O. Box 804625
Chicago, IL 60680-4107

Express and courier deliveries
USCIS
Attn: I-130
131 South Dearborn-3rd Floor
Chicago, IL 60603-5517

Categories
Updates

New Proposed Legislation Would Change Process for Waivers of Inadmissibility for Immediate Relatives

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USCIS is proposing to change the process for the filing and adjudication
of particular applications for waiver of inadmissibility filed in
connection with an immediate relative immigration visa application.
USCIS is looking at making changes to allow some relatives of U.S.
citizens to request provision waivers before departing the U.S. for the
consular processing of the immigrant visa applications.

If approved, this legislation would enable applicants to obtain this
waiver in cases when a Form I-130, the Petition for Alien Relative, is
filed by a U.S. citizen on his or her behalf and when that petition is
approved. The immigrant would then be considered an “immediate relative”
and would have to establish that the denial of this waiver would result
in “extreme hardship” to the petitioner’s U.S. citizen spouse or parent
“qualifying relative”. In this instance, the qualifying relative would
not have to be the immediate relative who filed the petition on the
immigrant’s behalf.

Categories
Immigration Round Table

Terminated Employees Ability to Petition Fiance

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Dear Atty. Lou,

My cousin is a United States citizen and he wants to get married this year. He wants to petition his fiancée. His problem is that he filed his income tax return this year for 2010 but for 2011 he would be filing “no income” because he was laid of from work for a year. But, this month of January he would be starting his new job. His concern is, would it affect his petition to his wife if his financial documents or Income Tax Returns (ITRs) are not somewhat perfect (no income in his latest income tax return). Can he still petition her fiancée? Or does he need to have 2 more years to file and have better ITRs? Are there other documents he can submit to be able to petition her? And also, can his family help him in the petition of his fiancée? His brother can help and is supportive of him since he has a business. Can the brother or his family submit an affidavit of support to fulfill the financial requirements of the petitioner?

John

Dear John,

Fiance visa or the K1 visa is a nonimmigrant visa that is issued to fiancé of U.S. citizens. It is only granted for a period of 90 days. Within that period of time, the fiancé is expected to marry the U.S. citizen and thereafter an immigrant visa or green card visa application may be filed.

For the K1 visa, both the Department of Homeland Security and the Department of State have explicitly stated that an Affidavit of Support is not a mandatory requirement. In a June 2006 regulatory publication 71 FR 35732, the U.S. Citizenship and Immigration Services clarified that Section 213A of the Immigration and Nationality Act requiring an I-864 Affidavit of Support does not apply to fiancé visa applicants.
The Department of State expresses clearly that the I-864 Affidavit of Support required from immigrant visa applicants is not applicable to fiancé visas and may not be required by the consular officers. But it is important to note that while the I-864 Affidavit of Support is not required, another form known as the I-134 which is also an old version of an Affidavit of Support may be requested when it is deemed useful. This means that while the mandatory 213(A) affidavit of support for immigrants may not be required, the applicants are still subject to 212(a)(4) that the fiancé will not become a public charge.

If the consular officer requires the I-134 Affidavit of Support, the petitioner’s letter from the employer, latest pay stub and other evidence that fiancé may be self supporting will suffice.

In response to your specific queries, your cousin may still petition his fiancé. He does not have to submit income tax returns but must support his fiancé applications with proof that he is now currently employed.

As soon as the fiancé arrives and immigrant visa application is filed, then he needs to submit an I-864 Affidavit of Support and if the income does not meet the support guidelines, his brother may submit an additional Affidavit of Support as a co-sponsor.

I hope this information is helpful.

Atty. Lou

(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808 or at 1 888 930 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com).

Categories
Updates

USCIS Releases Update on H-2B Cap for First Half of Fiscal Year 2012

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USCIS has published a new update of the amount of cap-subject H-2B visas
received for the first half of Fiscal Year 2012. According to USCIS, as
of December 30, 2011, the federal agency has received 17,176 petitions
toward the H-2B cap amount of 33,000 for the first half of Fiscal Year
2012. This total includes 11,414 approved petitions and 5,762 pending
petitions, and is an increase of just over 2,000 petitions since the
last update on December 23, 2011.

The H-2B non-agricultural temporary worker visa program enables U.S.
employers to hire foreign nationals to fill temporary non-agricultural
positions in the U.S. There is a Congressionally-mandated annual cap for
how many H-2B visas can be issued each year; 66,000 per fiscal year.
This total is then separated into two half-years, allowing for 33,000
visas for the first half of the fiscal year (October 1 to March 31) and
33,000 for the second half of the fiscal year (April 1 to September 30).

Categories
Global Pinoy

The Coming Out of the Young DREAMers

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In 2011, the coming out of two Filipino nationals who are undocumented received public attention. Their disclosures created an impact on the current political debate on immigration. These are the stories of two “Joses”.

Jose 1

At the age of 12, Jose used a fraudulent traveling document to go to the United States. This was just the first step in his immigrant journey. Jose was able to attend U.S. schools and graduated on top of his class. He became a journalist, an extraordinarily talented one. He is a Pulitzer Prize winning reporter for the Washington Post.

Jose was forced to live a life of lies and deceit after he discovered that he was undocumented at the age of 16. He concealed the fact that he was an undocumented immigrant and instead made a decision to study and work hard. His belief then was that if he tried to work hard and achieve enough, he would be rewarded with a legal status or a pathway to U.S. citizenship.

Having been advised to keep a low profile like any undocumented immigrant, Jose instead went against the odds and took on political assignments that would expose him to the American public.  In fact, he was given access to places where only citizens who had undergone strict security checks are permitted to go. Three years ago, he even covered and wrote news stories about the presidential campaigns and election.

On June 22, 2011, in an article he wrote for New York Times, he finally admitted that he is undocumented. In his own words he said that he is done running and is exhausted. He got tired of living a life of deceit and made a decision to advocate for the passage of a bill that will help individuals who are similarly situated. He still remains in the United States and the Department of Homeland Security has issued no deportation order on him yet.

Jose 2

The case of Jose 2 is distinct in many ways. He arrived in the United States when he was fifteen years old with his parents. He entered legally with a valid passport and a valid visitors visa. A few months after his entry, his parents filed an application for political asylum. Jose and his parents were able to obtain employment authorization to work in the United States. Jose attended U.S. schools and graduated with a bachelors degree. He was able to get a job as a “dental assistant.”
The family’s application for political asylum was eventually denied by the immigration service on the ground that his family had not met the eligibility requirements that would constitute “persecution.”  Jose and his parents were put in proceedings. After the court rendered a decision denying their applications only his parents departed voluntarily for the Philippines. The young Jose was left in the United States.

Unlike the first story, this second Jose tried to keep a very low profile. His U.S. employer filed a petition for him to be able to get a visa and this petition was approved. But current immigration law still does not allow him to obtain his status in the United States.  To make matters worse, his appealed case was dismissed and he was being ordered to depart last November 2011.

After staying under the radar for many years, Jose made his case publicly known through various press releases and television appearances. He sought the assistance of an organization that assisted him to advocate stopping his deportation and extensively used the social media.  After an effective advocacy, lobbying elected public officials and widespread support from the immigrant community, the Department of Homeland Security extended his stay in the United States for another year.

The DREAMers

The two Joses are the real life stories of Jose Antonio Vargas and Jose Librojo. They spent most of their growing years in the United States and have promising careers. Every year, they pay their taxes. They are DREAMers, the children who were brought to the United States when they were young and whose decision to migrate was not their own. The DREAMers are those who are being penalized by law for decisions or mistakes made by their parents.

Unfortunately, current US immigration law does not have provisions that will allow them to continue to live in the United States. Unless the Development, Relief, Education for Alien Minors  (DREAM) Act is pass into law, thousands of individuals who are similarly situated will also be facing the same predicament.

This New Year, I remain hopeful that somehow a resolution to undocumented children will be adopted. The cases of the two Joses are stories of courage. Their coming out of the dark enlightens many of us about the realities being faced by young and talented individuals whose dreams are shattered because of a dysfunctional system. There is a glimmer of hope that this will change.  Happy New Year to all!

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)

Categories
Updates

Ombudsman Office Now Requiring the Submission of Form DHS 7001 with all Cases

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The Ombudsman’s Office is now asking petitioners to submit Form DHS
7001, the CIS Ombudsman Case Problem Submission form, with all cases.
This includes cases related to applications for Employment Authorization
Documents. Form DHS 7011 is required for compliance with relevant
privacy rules.

Previously the Ombudsman’s Office was open to customers submitting case
inquiries regarding Employment Authorization Documents outside of normal
processing times without also submitting Form DHS 7001, due to the
urgency of many of these cases. This is no longer the case. It should
also be noted that, in October 2011, the Ombudsman’s Office implemented
the new Ombudsman Online Case Assistance program, which is an online
system that enables same-day submission of case problems.

Download Form DHS 7001 at http://www.dhs.gov/xlibrary/assets/cisomb_dhsform7001.pdf
Access Ombudsman Online Case Assistant at https://cisombvos.dhs.gov/vos/form7001.aspx

Categories
Updates

Wage Methodology for H-2B Visa Program Delayed until October 2012

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The Department of Labor has again delayed the effective date of the Wage
Methodology for the H-2B Visa Program, the Temporary Non-agricultural
Employment program. The effective date has been moved back to October 1,
2012, in response to new legislation that prohibits funds being used to
implement the Wage Rule for the rest of Fiscal Year 2012. The Wage Rule
revised the methods by which the Department of Labor calculates
prevailing wages to be paid to H-2B workers and U.S. workers recruited
in connection to a temporary labor certification submitted with a
petition to employ a nonimmigrant worker under H-2B status.

This rule was originally published January 19, 2011. It was first
delayed until August 1, 2011, and delayed again until September 28, 2011
and then November 29, 2011.