Changes In Immigration Law and Procedures

LPR SPOUSE PRIORITY DATES ARE ALMOST CURRENT!!!  : The VISA BULLETIN shows the Priority Dates for all Family 2A Preference Petitions is almost up to date. This means that the Beneficiaries of all approved Family 2A Petitions can apply for an immgrant visa at a US Consulate or, if eligible, for Adjustment of Staus in the US as son as thier Priority Date is reached. Please Note: Nothing on this website should be considered as Legal Advice. General statements here do not apply to all situations. Consult with an attorney familiar with Immigration Law.

The Family 2A Preference includes the spouse and under 21 year old unmarried children of US Legal Residents (Green Card holders). Some previous VISA BULLETINS showed a wait of about two years for this Preference. The two year wait has been reduced to just a few weeks. This short wait situation is only temporary and the wait for this Preference will probably increase as time goes on.

F2A does not affect over 21 year old children or married children. Over 21 year old children of LPRs are in Family 2B not 2A; and an LPR cannot submit a Petition for a married child.

SAME SEX MARRIAGES RECOGNIZED BY IMMIGRATION AND US CONSULS  : After a ruling by the US Supreme Court in June 2013, the US Immigration Service and the US Consuls will recognize Same Sex marriages for immigration and visa purposes.

The marriage must be legal where it was made and all requirements for Visa issuance or Green Card approval must be met.

"DREAM" CHILDHOOD ARRIVALS DEFERRED ACTION  : Immigration is accepting Childhhood Arrival Deferred Action Applications. USCIS will terminate Removal (Deportation) cases and issue work authorization to those who are eligible under the following rules. The program is for two years and is likely to be extended past that time.

Qualifications: Came to the US before age 16; was present in the US on 15 June 2012, was under 31 yars old on that date, has resided here for at least 5 years before 15 June 2012; is currently in school or has graduated from High School or has a General Education Certificate (GED) or is an Honorably Discharged Veteran of the US Armed Forces; has no convictions for a felony offense or a "significant misdemeanor"; poses no threat to US security.

Special application forms must be used. Can apply for a Work Authorization Card.

If a person dropped out of high school without graduating, a GED can be obtained in a few weeks at a relatively low cost.

Applicants will be required to have fingerprints taken and will have to pay a fee to apply for a work card (Employment Authorization Document EAD).

Be sure to read the Official Rules and Regulations or consult with an attorney experienced in Immgration matters.

VISA WAIVER TRAVELERS MUST APPLY FOR ADVANCE PERMISSION TO TRAVEL   Before traveling to the US using a Visa Waiver, the traveler must supply biographic and other information through an official website established by the US Government. Visa Waiver travelers must use an "e-passport" having an embedded electronic chip. Some older passports can still be used without the chip. There is a small fee for processing a Visa Travel Request.

Citizens of the following countries can travel to the USA without a visa. The entry will be for a maximum of 90 days and cannot be extended. The countries are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Republic of Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom

H-1B Professional Work Visa Limit Reached for Fiscal Year 2011   H-1B visas are in short supply. An H-1B visa allows the holder of a Bachelor degree to work for up to 6 years in a professional job. About 65,000 H-1B visas are available each Fiscal year. The demand for these visas in good economic times is so great that all available visas are used up on the first day they become available. In ailing economic times, some H-1B visas are available for a few month longer. H-1B Visas are always available for those already in H-1B status who transfer directly to another employer or extend current H-1B status.

An H-1B petition can be submitted 6 months before a job is to begin. The first day to apply for an H-1B visa is 01 April for a jobs starting the following 01 October or later.

All 65,000 H-1B visaa have been used up for jobs beginning on or after October 2012. The next H-1B visas will be available begining 01 April 2013 for jobs beginning 01 October 2013.

Visas Cannot Be Re-Issued (Renewed) in the US.   The US State Department no longer renews visas in the US. Previously, H, E, L and a few other visas could be re-issued while in the US by sending the passport to the State Department. This is no longer possible except for specified diplomatic visas. Visas renewals will be processed at US Consulates outside the US.

Change in Approval Time for I-130 Family Petitions.   Relative petitions I-130 will be approved only when the petition becomes "Current". Previously, a petition was approved when it was reached in the processing backlog even if it would not be "Current' for several years. A petition is "Current" when the Visa Bulletin shows that the petition receipt date ("Priority Date") has been reached. The Visa Bulletin is available on this website.

Under the rules now in affect, Relative petitions with waiting lists including Family 1st, Family 2A and 2B, Family 3 and Family 4 will all be held until they are "Current". Approvals will not be issued before that time. This means that a petition filed for person with a waiting list date, say 5 years in the future, may not be approved for 5 years.

Since petitions for Immediate Relatives of US citizen do not have waiting lists, these petitions will continue to be approved as they are reached in the processing backlog.

Other Changes  

Visitors cannot change to Student Status (F-1) while in the US unless they inform the US Airport/Border Inspector of the possible plan to attend school here. It is probably better for person to apply for a student visa at a US consulate or inform the consul that they might want to go to school so the visit visa can be marked "Potential Student"

Law to Help Some Children Over 21. Some over 21 year old children can keep benefits of their parent's petitions. Previously when a child becamne 21, the child was dropped from a parent's case. The rules and Regulations implementing are complicated but allow some children to benefit even after they turn 21. This is called the Child Status Protection Act (CSPA)

Spouses of Persons in the US In E Treaty or L Intra-Company Status Can Apply for Work Authorization.   The law now allows the spouse of person in the US in E-1, E-2, or L-1 status to apply for work authorization. This applies to spouses in the US in E-1 or E-2 Dependent status or in L-2 status. These spouses will be required to apply for an Employment Authorization Document (EAD). The EAD is a photo ID card verifying the right to work in the US. Children will not be authorized to work.

Section 245i of the Immigration Act allows some to apply for a green card in the US even if Out of Status if papers were submitted by April 30, 2001.   Section 245i allows people with an Immigration petition or a Labor Certificate that was submitted on or before April 30, 2001 to apply for a green card in the US even if they entered the US illegally or were out-of-status in the US. This allows the beneficiary of a Labor Certificate or an Immgration petition filed on or before April 30, 2001 to apply for Adjustment of Status. They can apply even if out-of-status. Caution: anyone who is the beneficiary of a Labor Certificate or petition filed after January 14, 1998 must also prove that they they were physically present in the US on 21 December 2000, the date of enactment of the LIFE law.

Some people are confused by Section 245i of the Immigration Act. This section applies to people who are in the US and who are out of status (stayed too long, worked without permission, etc.); or who entered the US illegally. These people not usually permittted to apply for a green card in the US (some exceptions for the spouse of a US citizen) but if a person meets the requirements of Section 245i, the person can apply for the green card in the US by paying a larger filing fee. Important: to use Section 245i the applicant must have an approved immigrant petition from an employer or a qualified family member. Section 245i is NOT an amnesty, it does not create a new way to get a green card. It does allow more people to apply in the US who have an approved and current immigrant petition.

The LIFE Act Allows Family Members Waiting for a Green Card to Come to the US.   A "V" visa allows the spouse and minor children of Legal Residents (spouse and children who are under 21 and unmarried in Family 2A Preference) to come to the US if they have been waiting for a green card for at least three years.

Here is a summary of the rules for the "V" visa:

Must have filed an Immigrant Petition for FAMILY 2A Preference for the qualifying family ON OR BEFORE 21 December 2000, the date the law was signed by the President.

The petition must have been pending with the BCIS for at least three years or the family must have been waiting for the quota or for consular processing for at least three years Consuls are now issuing V visas.

More Good News: The LIFE Act allows those who were in the US and who were out-of-status will be eligible for the V visa. The law barring re-entry for these applicants will not be applied. The LIFE Act also allows eligible family members who are in the US to apply to change the new V status even if they are in the US illegally, and with the extension of Section 245(i), V visa holders should be eligible to apply for Adjustment of Status to green card status.

The LIFE Act Allows Spouses Of U.S. Citizens Waiting for an Immigrant Visa to Enter the US with a "K" Visa.   The LIFE Act enlarges the eligibility for the so called "Fiance" visa (K) by allowing the spouse of a U.S. citizen to come to the US and be authorized to work while waiting for the petition to be processed. This visa is a K3 visa. Minor children who will accompany the spouse can also apply for K3 visas. (Caution: While minor children of a US citizen's spouse can be included in a K-3 Visa petition, minor children need their own I-130 Immigrant Petition).

Note: Because it was taking quite a long time to obtain approval of an I-130 Immigrant Petition, the K-3 Spouse Visa was implemented to allow the family of a US Citizen to reduce the time of separation by having the spouse come to the USA with a K-3 Visa then complete the Green Card application in the USA instead of waiting for approval of the I-130 Petition while outside the USA.

As of March 2013, the delay in processing I-130 Immigrant Petitions has been reduced and USCIS is no longer approving K-3 Petitions. USCIS instead is processing the I-130 Immigtant Petition more quickly and sending the approved Petition to the Visa Office of the US Consuls. The spouse can then apply for an Immigrant Visa at a US Consulate (instead of applying for a K-3 Visa) and will be issued an Immigrant Visa if the Consul approves the visa application.

In case the USCIS changes its current policy and begins approving K-3 Petitions again, here are the K-3 rules:

The Petitioner must be a US citizen. The US citizen must already be married to the K3 visa applicant. (Do not confuse this with the existing K visa for Fiances. To be eligible for the original "K-1" visa, the couple cannot be married.) An I-130 immigrant visa petition must be submitted before the "K3" visa Petition can be submitted.

The applicant for a K3 visa must be outside the US. A spouse already in the US cannot apply for a K3 visa. The K3 visa petition is submitted in the US. It is NOT filed at a consulate.

  Where the marriage to the U.S. citizen occurred outside of US, the K3 visa applicant must apply for the K-3 visa at the US consulate in the country where the marriage took place.

A K3 visa allows a person to work in the US.

With Section 245i no longer in effect, an unauthorized person will not be issued a Diversity Lottery visa in the US.   If they go back home to apply, they are subject to the 3 year and 10 year bars to re-entry. It seems that the Lottery is no longer a possibility for those in the US in unauthorized status for over 6 months.

Summary Exclusion at the Border/Airport.   Any person who comes to the US with no passport, with fraudulent documents, or who is belived entering in violation of the type of visa they hold, can be sent back immediately unless the person can show a credible fear of persecution. Applications for asylum must be made within 1 year of entering the US.

Comments:

These are not the official wording of the laws. Some of the provisions contain waivers and exceptions not noted here. These few extracts are just to give the reader an idea of the kinds of provisions contained in some immigration rules and statutes.

Travel Permission (Advance Parole) While Waiting for Adjustment of Status Decision

Applications for Advance Parole (travel) can be filed with an adjustment application. Generally applicants who have been in the US in out-of-staus condition for 6 months or more should not travel even with Advance Parole. Even if a person has been given Advance Parole, if they travel out of the US and return in parole status, they can still be denied an Adjustment of Status if they were in the US in unauthorized status for more than 6 months before they filed the adjustment application.

Send general questions by e-mail to rmadison@lawcom.com


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© Richard Madison 2013   Last edit 14 August 2013

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