Author: Tristan Mirasol

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Keeping “Some” Families Together

Update on the PIP Program
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Eligibility Gap: New Parole in Place (PIP) Program Leaves Some Non-Citizen Spouses Behind

On June 18, 2024, President Biden announced a new program targeting spouses of U.S. citizens who are unlawfully present in the country. This development sparked excitement among many non-immigrants without legal status, who viewed it as a potential pathway to citizenship. However, after waiting two months for the regulations to be released, it became clear that the majority of beneficiaries are likely to be nationals of Western Hemisphere countries.

The most critical eligibility requirement for this Parole in Place (PIP) program is that the applicant must not have entered the U.S. with a visa. If the applicant entered with an expired non-immigrant visa, such as a visitor’s visa, and overstayed their authorized period, their PIP application will be denied. To qualify, among other requirements, the applicant must be considered an “applicant for admission,” meaning they were neither inspected nor admitted at a port of entry or border checkpoint. This applies to individuals who entered the U.S. without inspection by a CBP officer, commonly referred to as EWIs (Entered Without Inspection).

According to the Federal Register notice, an estimated 64 percent of eligible non-citizens are Mexican nationals, while 20 percent hail from Guatemala, Honduras, and El Salvador. An additional 13 percent are from other Western Hemisphere countries. This PIP process reflects the U.S. commitment to addressing migration challenges throughout the Western Hemisphere, a goal shared with its partner countries. Several nations have requested regularization for their nationals who have resided in the United States for extended periods without lawful status. For instance, the Mexican government has urged the U.S. to regularize Mexican nationals who have been long-term residents in the country.

As the Philippines is not a Western Hemisphere country, only a small percentage of spouses of Filipino descent will be eligible for this PIP program. Since the Philippines is not a border country, travelers from non-border countries require both a passport and a visa to enter the U.S. Those who entered with a visitor’s visa (even if it has since expired) and are married to U.S. citizens do not need PIP, as they can file for adjustment of status.

Nevertheless, a significant number of Filipinos remain in unlawful status despite being married to U.S. citizens without options for legalizing their stay. There are cases of those who entered with visas but they fall victim to unscrupulous travel agents who take back the passport containing their visas. These individuals, who are unlawfully present in the U.S., may not apply for adjustment of status because they lack proof of entry. USCIS categorizes these travelers as having entered unlawfully.

Another group consists of Filipino spouses of U.S. citizens who “jumped ship” as crewmembers with C1/D visas and subsequently overstayed. Since they entered with a visa, USCIS deems them ineligible for PIP.

Although the Philippines is not a border country, some Filipino travelers have entered the U.S. by first traveling to a neighboring country, such as Mexico or Canada, and then crossing the border. Those who meet these criteria may apply for PIP and, if eligible, adjust their status to permanent resident.

Eligibility Criteria

There are two categories of individuals who may apply for PIP: spouses of U.S. citizens and stepchildren of U.S. citizens.

As mentioned, the applicant must be present in the United States without admission or parole.

For spouses, the requirements include:

  1. Continuous physical presence in the United States since June 17, 2014, through the date of filing the PIP request.
  2. A legal and valid marriage to a U.S. citizen on or before June 17, 2024.
  3. No disqualifying criminal history, and not deemed a threat to public safety, national security, or border security.
  4. Submission of biometrics and undergoing the required background checks and national security/public safety vetting.

For stepchildren of U.S. citizens, the requirements include:

  1. Being under the age of 21 and unmarried on June 17, 2024.
  2. Presence in the U.S. on or before June 17, 2024 (with no 10-year physical presence requirement).
  3. A non-citizen parent who entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024, and before the stepchild’s 18th birthday.
  4. No disqualifying criminal history, and not deemed a threat to public safety, national security, or border security.
  5. Submission of biometrics and undergoing required background checks and national security/public safety vetting.

Filing Process

Eligible individuals may file their PIP requests either individually or through their legal representative. All filings must be submitted online via either an attorney’s USCIS account or an individual USCIS account. The filing fee for the PIP request is $580.

Potential Legal Challenges

Similar to the Deferred Action for Childhood Arrivals (DACA) program, there may be political efforts to halt this program. As of this writing, no litigation has been filed to suspend the PIP program. If litigation does occur and a PIP request has already been accepted by USCIS, the adjudication will depend on whether the court orders a temporary suspension.

Screening for Eligibility

Some prospective applicants, including widows and individuals in removal proceedings, may also be eligible. Each case is unique, and USCIS has indicated that it will adjudicate requests on a case-by-case basis.

It is important to note that PIP is not an immigration relief program, nor is it a form of “amnesty.” This is why not all unlawfully present spouses of U.S. citizens will qualify. However, for those who do qualify, PIP could provide a pathway to filing for adjustment of status as the spouse or
stepchild of a U.S. citizen. Since not all spouses or stepchildren will be eligible for PIP, it is advisable to have one’s case analyzed by a trusted legal counsel to determine eligibility or to explore other available legal options.

(Atty. Lourdes S. Tancinco is an immigration attorney and immigrant rights advocate based in the San Francisco Bay area and a partner at the Tancinco Law P.C. for 32 years. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

Related: Parole in Place Program Update (08/26/2024)

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Updates

Update on the Parole in Place

Update on Parole in Place
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On Monday, August 19, 2024, the U.S. Citizenship and Immigration Services (USCIS) will begin accepting requests for Application for Parole in Place for Certain Noncitizen Spouse and Stepchild of U.S. citizens. Only a USCIS filing guide was released today but there is no Federal Register notice that was published as we expected.

According to the USCIS, Form I-131F will only be available to file online.

Eligibility and Process

To be considered on a case-by-case basis for this process, an individual must:

  • Be present in the United States without admission or parole;
  • Have been continuously present in the United States for at least 10 years as of June 17, 2024; and
  • Have a legally valid marriage to a U.S. citizen as of June 17, 2024.

In addition, individuals must have no disqualifying criminal history or otherwise constitute a threat to national security or public safety and should otherwise merit a favorable exercise of discretion.

Noncitizen children of potential requestors may also be considered for parole under this process if they are physically present in the United States without admission or parole and have a qualifying stepchild relationship with a U.S. citizen as of June 17, 2024.

Upon receipt of a properly filed parole-in-place request, USCIS will determine on a case-by-case basis whether a grant of parole is warranted and whether the applicant merits a favorable exercise of discretion. All requests will take into consideration the potential requestor’s previous immigration history, criminal history, the results of background checks and national security and public safety vetting, and any other relevant information available to or requested by USCIS. USCIS has strong processes in place to identify and address potential fraud, which will be applied here to ensure the integrity of this program.

This parole in place does not apply to all those who are present in unlawful status as this is not an “amnesty.” This parole may be granted only to certain individuals who are present in the United States without admission.

For more information on eligibility and application process, contact Tancinco Law P.C. at 415 397 0808 or email us at law@tancinco.com.

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The American Dream: A Dream Worth Chasing

The American Dream - A Dream Worth Chasing
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Dear TLAW Readers,

This month, we want to explore a topic close to the hearts of many in our community: The American Dream and its meaning for immigrants.

For generations, the American Dream has been a beacon of hope, symbolizing the potential for a better life built through hard work and perseverance. Immigrants, especially those from my native Philippines (“kababayan”), have been drawn to this ideal, seeking freedom from hardship and the chance to build a brighter future.

The Evolving Dream of Our Ancestors
For our parents and grandparents, the American Dream was often rooted in escaping challenges like political turmoil, economic struggles, or social limitations. Their pursuit focused on three key areas:

  • Economic Stability: Arriving with limited resources, many immigrants took factory, farm, or labor jobs, gradually building a foundation for their families.
  • Education for the Next Generation: Though their own opportunities might have been limited, education was seen as the key to a better future for their children.
  • Community and Integration: Immigrants formed supportive communities, preserving their cultural heritage while integrating into American society.

The Modern Landscape and New Challenges
While the core elements of the American Dream remain, the context for today’s immigrants has shifted. We face both new opportunities and challenges:

  • Technology and Globalization: Many immigrants arrive with advanced skill sets, finding opportunities in tech, healthcare, and other specialized fields fueled by globalization.
  • Educational Access: While education remains critical, modern immigrants may seek advanced degrees and specialized training to compete in a globalized economy.
  • Policy and Integration: Immigration policies and societal attitudes significantly impact the immigrant experience. Legal status and social acceptance are crucial for pursuing the American Dream.

Can All Reach the Dream?
The attainability of the American Dream is a complex issue. While it remains a powerful motivator, several factors influence accessibility:

  • Economic Inequality: Rising economic inequality can make achieving financial stability and upward mobility more difficult.
  • Policy Environment: Immigration policies like visa regulations, work permits, and pathways to citizenship significantly affect integration and success.
  • Social Factors: Discrimination, access to social support systems, and the strength of community networks all play crucial roles in the immigrant experience and the ability to realize the Dream.

A Dream Worth Chasing
Despite the challenges, the American Dream remains a powerful motivator for immigrants. As an immigration attorney for over three decades, I’ve witnessed the unwavering determination of my “kababayan” to achieve a better life for themselves and their families. This is not just about
ambition; it’s about a burning desire to build a brighter future for generations to come.

The American Dream may have evolved, but the core principles of opportunity and advancement persist. We, at Tancinco Law, P.C., are committed to helping you navigate the legal landscape and move toward achieving your own unique American Dream.

Sincerely,
Atty. Lou Tancinco

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Understanding Your Responsibilities Under USCIS’ Affidavit of Support

Understanding Your Responsibilities Under USCIS’ Affidavit of Support
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Are you a U.S. citizen or permanent resident planning to sponsor or co-sponsor an eligible family member for a green card? If so, you’ll need to sign an Affidavit of Support, known as Form I-864. But what exactly does this entail, and what are your responsibilities? Let’s break it down.

What Is Form I-864?
By signing Form I-864, you’re making a legally binding promise to financially support the person you’re sponsoring. This ensures they won’t have to rely on government assistance.

Who Must Sign?
Primary Sponsor: The main sponsor must be a U.S. citizen or permanent resident petitioning for the immigrant’s green card.
Joint Sponsor: If the primary sponsor’s income doesn’t meet the requirements, a joint sponsor is needed. This person shares the same responsibilities as the primary sponsor.

Sponsor Eligibility
To be a sponsor, you must:

  • Be at least 18 years old.
  • Be a U.S. citizen or permanent resident.
  • Have an income at least 125% above the Federal Poverty Guidelines.

Key Responsibilities
As a sponsor, you must ensure the immigrant maintains an income of at least 125% of the Federal Poverty Guidelines. If their income falls below this level, you’re responsible for providing financial support.

Financial Risks and Considerations
Legal Consequences: If you fail to provide support, the sponsored person can sue you. You may also be liable for court and legal fees.
Bankruptcy: Declaring bankruptcy does not absolve you of your obligations under Form I-864.
Government Benefits: You must repay any means-tested benefits the sponsored person receives, such as Medicaid, SNAP, TANF, or SSI. You’re not responsible for reimbursing non-means-tested benefits like emergency medical services or unemployment benefits.

When Do Your Sponsorship Responsibilities End?
Your financial duties as a sponsor conclude when any of the following occurs:

  • The individual gains U.S. citizenship.
  • They complete 40 quarters of work (about ten years).
  • They permanently leave the United States.
  • They are deported but gain U.S. residency again through another sponsor.
  • They pass away.

Continuing Obligations After Divorce
Divorce does not end your responsibilities under Form I-864. Courts generally do not recognize private agreements, such as pre-marital, post-marital, or divorce contracts, as valid reasons to avoid these obligations.

Withdrawing Sponsorship
You may withdraw your sponsorship before the green card application is approved. Once permanent residency is granted, your obligations are fixed unless they end under one of the specified conditions.

Address Change Notification
You must report any address changes within 30 days by submitting Form I-865 to USCIS to avoid fines of up to $5,000.

Understanding Your Commitment
Signing Form I-864 carries significant legal responsibilities. Make sure you understand these obligations before proceeding. Consider consulting a lawyer if necessary to ensure the person you sponsor can support themselves without public assistance.

This article is intended for general information purposes only and does not constitute legal advice. You should not act or rely on any information in this article without seeking the advice of a competent, licensed immigration attorney.

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Exploring Alternatives to the H-1B Visa

Exploring Alternatives to the H-1B Visa
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The H-1B visa is a popular choice for U.S. work visas, allowing individuals to work in specialty occupations. However, due to the high demand, many applicants do not secure an H-1B visa through the annual lottery. If you weren’t selected in the H-1B Cap Lottery for Fiscal Year 2025, which closed on March 25, 2024, and announced results on April 1, 2024, there are still several viable alternatives to explore.

1. H-1B Work Authorization for Cap-Exempt Employers

Not all H-1B employment falls under the annual cap. Certain employers can file cap-exempt petitions at any time, including:

  • Institutions of higher education or affiliated nonprofit entities
  • Nonprofit research organizations
  • Government research organizations

Additionally, cap-subject employers can hire H-1B visa holders who also work for a cap-exempt employer, provided they maintain their cap-exempt employment throughout the H-1B validity period.

2. F-1 Work Authorization Options

International students in the U.S. might extend their employment authorization through Optional Practical Training (OPT):

  • Non-STEM graduates can receive up to 12 months of work authorization post-graduation.
  • STEM graduates can receive up to 36 months of work authorization, provided their employer is enrolled in E-Verify.

Another option is enrolling in a new university program to work under F-1 Curricular Practical Training (CPT). However, this route carries risks, including potential requests for additional evidence in future H-1B petitions. It’s crucial to thoroughly research and maintain documentation of your student status.

3. Dependent Work Authorization Tied to a Spouse’s Employment

Spouses of visa holders such as E-2, E-3, H-1B, and L-1 may be eligible for work authorization:

  • Spouses of E and L visa holders are automatically authorized to work as indicated on their I-94 document.
  • Spouses of H-1B visa holders (H-4 visa) can work if the H-1B holder has reached a significant milestone in the green card process and the H-4 spouse has applied for an Employment Authorization Document (EAD).

4. Country-Specific Visa Categories

Citizens of countries with specific trade agreements with the U.S. can benefit from specialized work visas:

  • TN visas for Canadians and Mexicans in specified professional occupations.
  • H-1B1 visas for Chileans and Singaporeans in specialty occupations.
  • E-3 visas for Australians in specialty occupations.

These visas typically do not lead directly to green cards, so continuing to enter the H-1B lottery is advisable for long-term U.S. residency.

5. E-1/E-2 Visas for Treaty Traders & Investors

Nationals from countries with U.S. treaties can apply for E-1 (treaty trader) or E-2 (treaty investor) visas. These visas apply to executives or specialized employees of companies with the same nationality as the applicant. However, like other visas, they don’t directly lead to green cards, so participating in the H-1B lottery is still recommended.

6. O-1 Visa for Individuals with Extraordinary Ability

Individuals with exceptional talent in sciences, education, arts, business, or athletics may qualify for an O-1 visa. This category includes specific provisions for PhDs in STEM fields. Similar to other alternatives, this visa doesn’t provide a clear path to a green card.

7. L-1 Visa for Intracompany Transferees

Employees of international companies with U.S. branches might qualify for an L-1 visa if:

  • The U.S. and foreign entities have a qualifying relationship.
  • The applicant has worked for the foreign entity for at least one year in the past three years.
  • The employment is in a managerial or specialized knowledge role.

8. Green Card Options

Though not an immediate solution, applying for a green card can lead to long-term U.S. work authorization. Some categories allow self-petitioning without employer sponsorship:

  • EB-1 for individuals of extraordinary ability, requiring proof of sustained acclaim.
  • EB-2 with a National Interest Waiver for individuals with advanced degrees or exceptional abilities, demonstrating that their work benefits the U.S.

By understanding these alternatives, individuals not selected in the H-1B lottery can still find viable paths to work and remain in the U.S.

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Increased, Reduced, and Waived Naturalization Fees: What You Need to Know

Increased, Reduced, and Waived Naturalization Fees: What You Need to Know
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Effective April 1, 2024, U.S. Citizenship and Immigration Services (USCIS) implemented new filing fees for naturalization applications. The standard fee for paper filings has risen to $760, while online filings now cost $710. Alongside these changes, USCIS has updated the criteria for reduced fees and fee waivers, potentially expanding access to naturalization for eligible applicants.

New Fee Structure and Reduced Fees

The 2024 fee rule introduces a significant change: applicants now have the opportunity to pay a reduced naturalization fee, which is 50% of the standard fee, amounting to $380. This reduction aims to make the naturalization process more accessible to a broader range of individuals who meet specific eligibility criteria.

Full Fee Waiver: Eligibility Criteria

For those facing financial difficulties, a complete waiver of the filing fee is available. To qualify for this 100% fee waiver, applicants must meet one of the following criteria:

  1. Receipt of Means-Tested Benefits: Applicants who receive federal, state, local, or tribal benefits that are determined based on income and resources may qualify for a full fee waiver. These means-tested benefits consider an individual’s financial situation in determining eligibility.
  2. Income Below 150% of Federal Poverty Guidelines: Applicants whose income is at or below 150% of the federal poverty guidelines can also qualify for a full fee waiver. The poverty guidelines vary based on household size, and specific income thresholds must be met to qualify.
  3. Extreme Financial Hardship: USCIS defines extreme financial hardship as a situation where applicants need almost all of their current income and liquid assets to meet ordinary and necessary living expenses. Examples of such hardship include:
    • Medical illness
    • Unemployment
    • Eviction or homelessness
    • Natural disasters
    • Military deployment of a spouse or parent
    • Divorce or death of a spouse
    • Other unexpected life events that limit the ability to cover living expenses

Additionally, fee exemptions have been expanded to include applicants and their derivatives seeking relief under the Violence Against Women Act (VAWA), U Nonimmigrant status, T Nonimmigrant status, and Special Immigrant Juvenile Status (SIJ).

2024 Federal Poverty Guidelines

To understand eligibility for fee waivers and reductions, it’s essential to refer to the 2024 federal poverty guidelines:

# of Persons in Household
Poverty Guidelines
0-149% (Fee Waiver)150-400% (Reduced Fee)
1$15,060$22,439.40$60,240
2$20,440$30,455.60$81,760
3$25,820$38,471.80$103,280
4$31,200$46,488.00$124,800
5$36,580$54,504.20$146,320
6$41,960$62,520.40$167,840
7$47,340$70,536.60$189,360
8$52,720$78,552.8$210,880

For households with more than eight persons, add $5,380 for each additional person to the base poverty guideline before applying the respective calculations.

Conclusion

Understanding the new fee structure and eligibility criteria for reduced fees and fee waivers is crucial for non-U.S. citizens seeking naturalization. These changes by USCIS aim to balance the cost of processing applications with the need to ensure accessibility for all eligible individuals. If you believe you qualify for a reduced fee or a fee waiver, consider consulting with an immigration attorney to navigate the application process effectively.

For further assistance or to discuss your specific situation, please contact our law firm. We are here to help you understand your options and guide you through the naturalization process.

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Facing Deportation: What Happens When a U.S. Citizen Spouse Denies Your Marriage?

Facing Deportation - When a U.S. Citizen Spouse Denies Your Marriage
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For marriages of less than 2 years involving a U.S. citizen and a non-citizen, the initial green card is issued with a two-year conditional period. Before these two years expire, the non-citizen spouse must file to remove these conditions to obtain a green card with a ten-year validity period. But what happens if the U.S. citizen spouse becomes uncooperative, despite the couple still living together? Worse, what if the USCIS denies the joint petition for removal of conditions, putting the non-citizen spouse at risk of deportation? Let’s delve into the case of Maria and John

Maria and John’s Story

Maria, a young college graduate, met John, a U.S. citizen, while working as a guest relations officer at a popular beach resort in the Philippines. Their relationship blossomed, leading John to file a fiancé visa for Maria upon his return to the United States. The visa petition was approved, and Maria traveled to the U.S. to be with John.

During her initial stay, Maria noticed alarming changes in John, who was 20 years her senior. He became increasingly forgetful, his behavior erratic, and his mood swings frequent. Despite these challenges, Maria remained a patient and loving wife. However, they lacked sufficient proof of marriage—no photos together, no joint documents, as they lived with John’s family and didn’t pay rent.

When USCIS called them for an interview to remove the conditions on Maria’s residency, they were interviewed separately. The immigration officer concluded that Maria had entered into a fraudulent marriage, denying the petition. Maria was shocked. Upon reviewing the USCIS decision mailed to her, she realized John had made inconsistent statements during the interview, including an admission that the marriage was solely for Maria to obtain a green card. Maria suspected John’s worsening memory lapses had caused him to forget critical details of their relationship.

Now facing deportation for alleged marriage fraud, what legal steps can Maria take?

Maria’s Deportation Proceedings

When a non-U.S. citizen faces removal due to a denied petition for removal of conditions, the burden of proof lies with USCIS to establish grounds for terminating the conditional resident status. For her defense, the applicant can present new, material, and relevant evidence that was not previously submitted during USCIS proceedings.

Given the lack of joint documents and photographs, Maria must provide testimonial evidence from individuals who can attest to the authenticity of their marriage. Financial and property arrangements vary among couples, and some may have better documentation than others. In Maria’s case, her joint tax returns were her only significant documents. She was advised to gather witnesses who could detail their marital relationship.

Importantly, Maria did not have the opportunity to present this evidence during the USCIS interview. Immigration court provides the ideal forum to present additional evidence to prove her marriage was entered into in good faith.

Besides testimonial evidence, Maria can demonstrate that John has been clinically diagnosed with dementia, explaining his inconsistent answers during the USCIS interview. This crucial evidence could have significantly impacted her case.

With the submission of testimonial evidence and John’s medical records, Maria successfully proved her case in court and retained her green card.

Options for Others in Similar Situations

For those not as fortunate as Maria, an immigration judge, with the assistance of legal counsel, may accept an INA Section 237(a)(1)(H) waiver if the charge for terminating conditional residency relates to marriage fraud.

This case highlights the importance of gathering substantial evidence and leveraging all available legal avenues to demonstrate the legitimacy of a marital relationship, even under challenging circumstances.

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USCIS Issues Final Rule to Adjust Certain Immigration and Naturalization Fees

USCIS Issues Final Rule to Adjust Certain Immigration and Naturalization Fees
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WASHINGTON – Today, U.S. Citizenship and Immigration Services (USCIS) published a final rule to adjust certain immigration and naturalization benefit request fees for the first time since 2016. The final rule will allow USCIS to recover a greater share of its operating costs and support more timely processing of new applications.

The final rule is the result of a comprehensive fee review, as required by law, and follows the January 2023 publication of a notice of proposed rulemaking. The review concluded that the current fee schedule falls far short in recovering the full cost of agency operations, including the necessary expansion of humanitarian programs, federally mandated pay raises, additional staffing requirements, and other essential investments.

“For the first time in over seven years, USCIS is updating our fees to better meet the needs of our agency, enabling us to provide more timely decisions to those we serve,” said USCIS Director Ur M. Jaddou. “Despite years of inadequate funding, the USCIS workforce has made great strides in customer service, backlog reduction, implementing new processes and programs, and upholding fairness, integrity, and respect for all we serve.”

USCIS received over 5,400 unique public comments in response to its January 2023 notice of proposed rulemaking. USCIS took into consideration comments and feedback received during the proposed rulemaking process. Acknowledging this feedback from stakeholders, the final fee rule includes several important updates since the initial rulemaking. The final rule:

  • Lowers the agency’s required annual cost recovery by $727 million, in part by considering the budget effects of improved efficiency measures;
  • Expands fee exemptions for Special Immigrant Juveniles and victims of human trafficking, crime, and domestic violence; U.S. military service members and our Afghan allies; and families pursuing international adoption;
  • Provides special fee discounts for nonprofit organizations and small business employers;
  • Allows for half-price Employment Authorization Document applications for applicants for adjustment of status and a reduced fee for adjustment of status applicants under the age of 14 in certain situations;
  • Expands eligibility for a 50% fee reduction for naturalization applications, available to individuals who can demonstrate household income between 150% and 400% of the Federal Poverty Guidelines; and
  • Implements a standard $50 discount for online filers.

Every fee in the final rule is the same or lower than in the proposed rule. For most individual filers, the final rule limits how much newly established fees may increase. Under the final rule, the new fees will not increase by more than 26%, which is equivalent to the increase in the Consumer Price Index since the last fee rule was issued in 2016.

With the new revenues the rule will generate, USCIS will continue using innovative solutions to improve customer experience and stem backlog growth. Although the fee increases announced today will allow USCIS to better offset overall costs, congressional funding continues to be necessary to sustainably and fully address the increased volume of caseloads associated with recent border crossers, including by hiring additional USCIS personnel to help right-size a system that was not built to manage the numbers of cases USCIS receives.

The new fees under the final rule will go into effect on April 1, 2024.

USCIS encourages stakeholders to visit the Frequently Asked Questions page on its website to view a full list of the revised forms that will go into effect on April 1, 2024, along with the new fees. USCIS will accept prior editions of most forms during a grace period from April 1, 2024, through June 3, 2024. During this grace period, USCIS will accept both previous and new editions of certain forms, filed with the correct fee.

There will be no grace period for the following new forms, however, because they must be revised with a new fee calculation. Filers should click the links below to access a preview version of each new form edition before the April 1, 2024, effective date:

USCIS will use the postmark date of a filing to determine which form version and fees are correct but will use the receipt date for purposes of any regulatory or statutory filing deadlines.

USCIS ANNOUNCES WINDOW FOR  H1B CAP REGISTRATION

The fiscal year 2025 (March 2024) H-1B cap registration period will open at noon eastern on March 6, 2024 and run through noon eastern on March 22, 2024. For fiscal year 2025 H-1B cap filings, employers will also have the option of filing Form I-129 electronically on the USCIS website.

On January 30, 2024, USCIS announced a final rule to reduce the potential for fraud in the H-1B registration process. The new rule selects H-1B cap entries by each unique employee, instead of by each registration. This gives each employee the same chance of selection, regardless of how many registrations were submitted on that employee’s behalf.

With this update to the registration process, the employee is required to include valid passport or travel document information, and a employee cannot register under more than one passport or travel document.

USCIS has also provided clarification that for H-1B cap petitions, a start date after October 1 of the relevant fiscal year is allowed.

(Source: USCIS Website-Release Date: 01/30/2024)

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Marry, Divorce & Remarry: Effect on the Conditional Green Card Holder Spouse

Marry, Divorce & Remarry: Effect on the Conditional Green Card Holder Spouse
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Entering into a good faith marital relationship is always with the intention to stay married forever.  But what if there is no “forever”? What will happen when there is separation or divorce?  What are the effects of these circumstances to the petitioned spouse who is a green card holder with only a conditional resident status? 

Let’s take the case of Joseph (not his real name).  In 2015, Joseph entered the United States based on the petition of his U.S. citizen spouse Rita.  They were childhood sweethearts and have known each other since high school.  So when Rita attended their high school reunion, both Joseph and Rita rekindled the old flame and got married in a simple wedding ceremony.  Upon returning to the United States, Rita petitioned Joseph.  After a year of petitioning, Joseph was able to travel to the United States and was issued a 2-year conditional green card with an expiration date of  12/30/2018.  

After being together for only 6 months, Rita and Joseph began to experience marital problems until they decided to go their separate ways. Rita obtained a divorce decree ending their short lived relationship.  

With Joseph’s green card’s validity expiring, he was at a loss on whether he will return to the Philippines (to avoid falling out of status) or file for a waiver.  He decided to return to the Philippines but a few months before his departure, he met Cecilia who is also a U.S. citizen.  Cecilia and Joseph started dating regularly until Cecilia offered to marry and petition Joseph.  Now Joseph is presented with a situation where he has to choose to return to the Philippines or have Cecilia petition him.  Can he be petitioned even if he still has 6 months validity on his original conditional resident card?  Will the USCIS allow him to adjust his status in the U.S. once Cecilia petitions him?

Under the Immigration and Nationality Act (INA) Section 245(d), conditional residents are barred from adjusting unless they take the necessary steps to remove the two year conditions on their status.  This means that a person could not obtain conditional resident status based on marriage to a U.S. citizen, divorce that petitioner spouse, remarry a second U.S. citizen and re-adjust during that 2 year period.  

When a person with conditional resident status fails to file for the Petition to Remove Condition (I-751) prior to expiration of the validity of the two year conditional status, the USCIS usually issues a decision terminating the status of the green card holder.  The next process then is that the petitioned spouse will be facing the Immigration Judge in a court proceeding to have a filed I-751 be reviewed to prove validity of the first marriage. 

This rule had applied for many years until the interpretation of this rule was changed in 2019 by the USCIS based on the case of Matter of Stockwell, 20 I&N Dec 309 (BIA 1991), where a person with condition resident status may adjust based on second marriage without having to go to immigration court.

Therefore, in the case of Joseph, once he gets the USCIS Notice Terminating his resident status, he will be allowed to adjust based on the second marriage.  USCIS interpretation is that conditional status is now terminated as a matter of law on the second anniversary of the noncitizen’s lawful admission for resident status.