Tag: uscis

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DHS to launch known Employer Pilot Program

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The Employer pilot program is announced by the U.S. Department of Homeland Security (DHS). This program is to assess a new process for employers seeking to hire certain workers through employment-based visa categories.

The program will be designed to make adjudications more efficient and less costly and also to reduce paperwork and delays for both the department and U.S. employers who seek to employ foreign workers.

GOALS OF THE KNOWN EMPLOYER PILOT PROGRAM

  • Reducing the amount of paperwork filed by employers and retained by USCIS
  • Encouraging the stability in the settlement of employment-based petitions and applications.
  • Restructuring the adjudicative process to achieve greater efficiency within USCIS
  • Providing greater support to CBP and DOS in support of greater efficiency and consistency at ports of entry and consular posts.

Under the Known Employer pilot, up to nine preselected employers will file applications requesting that USCIS predetermine that they meet certain requirements relating to certain immigrant and nonimmigrant visa classifications. Employers will create a profile in the Web-based Known Employer Document Library (KEDL), and upload documents relating to the requirements, when making this request.

USCIS officers will review and decide whether a prospective employer has met certain requirements relating to the visa classifications, and if USCIS approves the employer’s predetermination request, the employer may then file petitions or applications for individual employees without needing to resubmit company information with each petition or application.

No additional fee is charged to participate in this program. At any time, USCIS may terminate or extend the pilot at any time. DHS and DOS will solicit on going feedback from the participants.

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Updates

DHS Proposing new employment based immigration regulations

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The Department of Homeland Security [DHS] is offering rule that would modernize and improve certain aspects of employment based immigration visa programs. People with temporary work visas waiting for a green card are the one who is going to get more benefits because of these projected changes. The DHS says that the projected changes are ‘envisioned to better expedite US employers to recruit and maintain extremely accompanied workers who have profited from employment-based immigration visa petitions, while growing the skill of such workers to progress their careers by accepting raises, changing positions with present employers, changing employers, and trailing other employment opportunities.

Many of the projected changes will actually have no practical effect of any kind, according to the National Law Review – an online news source published by a group of in-house attorneys. The National Law Review states that even the most noteworthy change of them all, relating to work authorization for certain individuals with approved I-140s, will have very little effect basically.

Highlights:

 

  1. The extension of an H-1B visa can be obtained beyond the maximum six-year stay.
  2. When an H-1B non-immigrant can shift jobs or employers without it affecting his or her permitted immigrant visa petition.
  3. How to calculate H-1B recapture time [days outside the US that do not count towards the maximum six-year stay].
  4. Those businesses that qualify as H-1B ‘cap-exempt’ employers. This is important as in recent years the H-1B visa quota is immensely oversubscribed within a few days of the quota becoming available at the opening of April each year.
  5. Offering a one-time 60-day grace period, during an authorized validity period, for individuals in E-1, E-2, E-3, H-1B, L-1, or TN status, where employment ends due to voluntary or involuntary termination or lay off. These individuals are not authorized to work during the grace period.
  6. An addition of the 10-day grace period allowed prior to and after H-1B status to also include persons in E-1, E-2, E-3 or L-1 status. During the 10-day grace period, you will not be permitted to work. On a one time basis, you also benefit from 60 day grace period, if you are on this employment related visas.
  7. Permitting issuance of one-year Employment Authorization Documents (EAD) for individuals in E-3, H-1B, H-1B1, L-1 or O-1 status with an approved I-140 and no available visa numbers if the individual can show compelling circumstances. It is not certain what is meant by convincing circumstances; DHS includes examples, such as serious ailment and disabilities. If you work with an EAD in these circumstances then it will be considered to be the case that you are no longer on a non-immigrant work visa and when visa numbers are available will need to apply for an immigrant visa from outside the US. If you have an EAD your spouse and children may also be able to apply for an EAD. Renewals are allowed in certain circumstances.
  8. Removing the 90-day processing time required by United States Citizenship and Immigration Services (USCIS) for Employment Authorization Documents (EADs), spontaneously extending most EADs 180 days beyond the expiration if the extension was timely filed.

It is worthwhile to note that the DHS proposal does include other regulatory amendments. However, these additional changes largely conform to current policy guidance, and so the primary purpose of the regulations in these additional areas is to formalize the existing guidance.

 

 

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Updates

Deadline to Request TPS for Nepal is December 21

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USCIS notes that the deadline for eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) to register for Temporary Protected Status (TPS) is Monday, Dec. 21, 2015. This deadline date is the end of the 180-day initial registration period. TPS designation for Nepal runs from June 24, 2015, through Dec. 24, 2016.

You must demonstrate that you meet all eligibility criteria, including that you have been both “continuously physically present” and “continuously residing” in the U.S. since June 24, 2015, to be eligible for TPS. You will also be required to undergo thorough security checks.

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Global Pinoy

Widows can get visas despite death of petitioners

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THE GENERAL rule that the “petition dies with the petitioner” is subject to certain exceptions.

One way to avoid the automatic revocation is to file a humanitarian revalidation. The other is the conversion of the spouse petition to a widow petition despite the death of the US citizen spouse.

What happens in cases where the surviving spouse remarries after the death of the petitioner?

Michelle married Douglas, a US citizen in 2003. Douglas filed a spouse petition in 2004 but unfortunately died before his petition was approved.

Michelle was not able to file a widow’s self-petition because back in 2004, the marriage should have been in existence for two years before a widow petition is allowed.

In 2007, Michelle married her second husband Noel but this marriage ended in a divorce. In 2010, Michelle filed a widow’s self-petition because immigration law changed by then, now allowing marriages of less than two years to file for self-petition.

This widow’s petition was denied because Michelle married her second husband Noel after the death of Douglas. Is this second-marriage bar an absolute rule for widow petitions?

If Michelle did not marry the second time, will she be able to get the immigrant visa based on her first marriage to Douglas?

Widow petitions

Certain widows and widowers may be able to obtain permanent residence after their US citizen spouse passes away. The following requirements must be met:

  • Self-petitioner was married to a US citizen;
  • The deceased spouse was a US citizen at the time of his or her death;
  • The spouses were not legally separated at the time of the death;
  • They file a US Citizenship and Immigration Services (USCIS) form I-360 within two years of the death; and
  • They are not inadmissible.

A 2009 law eliminated the prior requirement that the couple should have been married for at least two years.

Widows or widowers whose US citizen spouse died before the new law went into effect on Oct. 28, 2009, had two years from that date to seek relief.

The US Immigration law provision on self-petitioning widow or widower clearly provides a bar to receiving immigrant visa if there was a remarriage after the death of the original US citizen spouse.

Effect of remarriages

This is the case of Michelle who can no longer avail of a petition filed on behalf of her first husband.

But if Michelle was already residing in the United States at the time of the death of her first husband, the case will be different.

There is a very recent exception for widows who have remarried and are currently residing in the United States. The USCIS released in November 2015 a policy memorandum where the widow who remarried may still avail of the first petition by the US citizen spouse under Section 204(l) of the Immigration and Nationality Act.

The main requirement is that the beneficiary must have been residing in the United States at the time of the petitioner’s death and continuing to be residing in the United States.

The other requirement is a substitute sponsor who can file an affidavit of support on her behalf.

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Global Pinoy

Dealing with Questionable Parent-Child Relationship

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When it comes to proving relationships in family petitions or in citizenship applications, submission of legal documents will generally suffice to obtain a visa approval from the U.S. Citizenship and Immigration Services. There are certain times, however, when birth certificate documents are available yet a DNA test is still required to prove relationship. When does this occur and what will happen if the real parent is other than the petitioner?

Jessie is a U.S. citizen who met Alexa, his fiancé, during one of his visits in Manila. After two years of courting Alexa, he finally decided to file a fiancé visa petition for Alexa. A petition was filed with the U.S. Citizenship and Immigration Services and the fiancé visa was approved.

Prior to being interviewed at the U.S. Embassy, Alexa gave birth to Joshua. A birth certificate was obtained indicating that the father is Jessie. The relatives and friends of Jessie had doubts about the paternity of the child. Nonetheless, Jessie filed a Consular Report of Birth Abroad with the US embassy in manila so that a U.S. passport may be issued to Joshua as his U.S. citizen child. Paternity was in doubt because at the time of conception, Jesse was in the United States. Further evidence was required including a DNA testing to determine paternity. Instead of proceeding with the DNA test, Alexa admitted that child Joshua’s father was Alexa’s former suitor. As expected, Jessie was severely distressed by Alexa’s admission but also realized that he still loves Alexa and is willing to accept Joshua as his own child. Can Alexa still obtain the fiancé visa? Will Joshua be able to travel to the United States with his mother?

Derivative Citizenship

A child born abroad to a U.S. citizen parent may derive U.S. citizenship from the parent as long as eligibility requirements are met. These children are U.S. citizens at birth. In conferring derivative citizenship proof of parental relationship is critical. There is usually further scrutiny of the application when the parents of the child are living apart, or, when there is a wide age gap between the parents.

Stepchild of the Fiance

In the case of Jessie, instead of applying for derivative citizenship of the child Joshua, he could still get a K2 visa as the child of his fiancé. Unfortunately, Alexa has to deal with her ‘misrepresentation’ issue when she stated that the father of the child was Jessie. This may affect her ability to obtain the visa unless a waiver is filed and approved by the USCIS.

Proving parental relationship should not be difficult if the truth is asserted from the beginning of the application. Concealment of child’s real parents by the use of a false birth certificate will not be favored in visa applications. There may be good intentions but the best interest of the child is not served by concealing the identity of his real parent until the time of the visa application.

(Atty. Lourdes S. Tancinco may be reached at law@tancinco.com, facebook.com/tancincolaw or (02)721-1963)

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Global Pinoy

Convicted sex offenders are not qualified to file family petitions

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Deportations from the United States usually arise in cases of non-US citizens committing crimes or violations of immigration law. However, in certain instances, deportation may also arise when it is discovered that the petitioning fiancé or spouse had been convicted of a sexual offense against a minor.

John, a US citizen, petitioned Jenna as his fiancé in 2007. Jenna is a single parent who has a minor child from a prior relationship. The fiancé visa petition filed by John on behalf of Jenna was approved. The consular officer issued proper visas for Jenna and her minor child.

Upon arrival in the United States, Jenna immediately married John in a simple civil wedding ceremony. After the marriage, an application for adjustment of status was filed with the US Citizenship and Immigration Service (USCIS) so that Jenna and her daughter could become green card holders.

John and Jenna have a genuine relationship. They are a happy couple. They live together as husband and wife, and have plans to have a child of their own. While applying for the change of immigrant visas, an unexpected problem arose that shattered the couple’s family dreams. Instead of a green card, Jenna received a Notice to Appear for a deportation hearing.

Unbeknownst to Jenna, John had a criminal conviction in 1979 and was sentenced to a prison term for committing a sexual offense against a minor. This offense made him incapable under the Adam Walsh Act of filing a petition on behalf of a foreign national. The prior visa of Jenna was rendered invalid, and the application for adjustment of status was denied. Jenna and her minor child are now being ordered to leave the United States.

The Adam Walsh Act
Jenna filed an appeal for the removal case in the Board of Immigration. It was denied. What will happen to Jenna and John? Will they be separated forever because of the legal barrier imposed by the Adam Walsh Act?

The Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) was enacted by the US Congress to protect children from sexual exploitation and violent crimes, prevent child abuse and child pornography, promote Internet safety, and honor the memory of Adam Walsh and other child crime victims.

The law prohibits US citizens and lawful permanent residents who have been convicted of any “specified offense against a minor” from filing a family-based visa petition on behalf of any beneficiary. The prohibition covers those convicted of kidnapping, false imprisonment, solicitation to engage in sexual conduct, use of a minor in a sexual performance, prostitution, criminal sexual conduct involving a minor or the use of the Internet to facilitate or attempt such conduct, and any other sex offense against a minor.

This prohibition applies unless it can be shown that the petitioner poses no risk to the safety or wellbeing of the beneficiary, including any derivative beneficiary. Beneficiaries include the spouse, fiancé, parent, unmarried child, unmarried son or daughter over 21 years of age, orphan, adopted child, married son or daughter, brother or sister.

Retroactive effect
John committed the crime against a minor in 1979, before the Adam Walsh Act was enacted. It had been 27 years since John was convicted of the offense when he met Jenna. He had served his sentence and was remorseful about his past conduct. He has committed no other crime since then. Jenna argued that since the crime was committed before the enactment of the law that prohibited the filing of family petitions by sexual offenders, his petition should not be considered affected by the prohibition.

The immigration court and the Board of Immigration Appeals agreed that the Adam Walsh Act does not contain a provision on its exact effectivity date. Nevertheless, it is applied retroactively because of the danger the offender may pose on the person being petitioned. It examined the law’s purpose, which is to “ensure that an intended alien beneficiary is not placed at risk of harm from the person seeking to facilitate the alien’s immigration to the United States. A petitioner who has been convicted of a “specified offense against a minor” poses a present danger as a potential sexual predator. Hence, John is still prohibited from filing a petition on behalf of Jenna.

No-risk exemption
John may still prove that he no longer poses a risk to the safety of his spouse and stepdaughter. This is the only exception available. However, any attempt to show that a petitioner has been rehabilitated and no longer poses a risk is measured by the highest standard available under the law, which is “proof beyond reasonable doubt.”

The effect of the Adam Walsh Act on Jenna and her daughter is that they may very well be removed from the United States as a result of John’s previous conviction. While this may be seen as antithetical to the policy of family reunification, we need to understand that it is also in the public interest to protect foreign nationals and minor children from the possible harm that could be posed by a convicted sexual offender.

It is not impossible to meet the high standard required by the USCIS and make a clear showing of rehabilitation from convictions involving crimes of sexual predation. It augurs well, however, that the standard is high, difficult and exacting, if we want to truly protect our children.