Seguritan US Immigration Articles

GOP Platform Has Bad News for Immigrants

The Republican Party’s platform which mirrors the vision that the party hopes to campaign on leading to the upcoming November 2016 elections has some bad news for immigrants.

Anchored on the pursuit of “Reforming the Government to Serve the People”, the GOP has sixteen major agenda that it hopes to push forward on matters of retirement security, economic growth, Medicaid and health, tax reforms and of course, immigration.

The party has acknowledged the huge contribution that immigrants have made for the American economy. “Just as immigrant labor helped build our country in the past, today’s legal immigrants are making vital contributions in every aspect of our national life. Their industry and commitment to American values strengthens our economy, enriches our culture, and enables us to better understand and more effectively compete with the rest of the world,” the platform states.

However, the platform likewise underscored that while they applaud those who go through the legal channels of immigration, they are saying that those who came here illegally undermine the benefits that legal immigrants have contributed to the country and at the same time, these undocumented immigrants threaten the safety of communities, remove jobs from US workers, and pose grave risks to the safety and the sovereignty of the United States.

Thus, their platform drumbeats the same hard line stance of Republican presidential nominee Donald Trump in saying that the highest priority should be in securing the rule of law  both at our borders and at ports of entry. Building the wall that they hope will counter illegal immigration is also a part of their agenda although this is nothing new since building a “wall’ was also in the Republican 2012 platform. “The double-layered fencing on the border that was enacted by Congress in 2006, but never completed, must finally be built.”

The platform promises that it will grant no amnesty to the undocumented immigrants because it rewards breaking the law and encourages more people to do the same. Instead, it promises to enforce alien e-verify programs before immigrants will be granted any kind of federal or State support or entitlements or work authorization.

Many frowns upon this platform and policy directions of the GOP saying that it has a very simplistic and black-and-white view of immigration and lacks a deep understanding of why there are illegal immigrants in the country. It has failed to recognize that for these millions of undocumented immigrants, they simply do not have a choice- they don’t have any choice but to run away from their home country either to escape persecution or gang violence, as in the cases of those trying to cross the borders from Central America or escape extreme poverty but lacks the required documented family members or skill set to be able to go through the rigorous process of legal migration.

While the document blames undocumented immigrants for taking jobs away from American workers, it has failed to provide any concrete solutions to actually provide jobs for these displaced workers.

Senators Urge Obama to Stop Deportations

As the November presidential election looms and as his term’s end draws closer, President Barack Obama faces a growing clamor to address immigration problems. The latest call for immigration reforms came from Senate Democrats that are pushing his administration to stop the deportations of asylum seekers.

Senators Edward J. Markey joined Senator Dick Durbin (D-IL) and Senator Patrick Leahy (D-VT) and 22 Senate Democrats in calling for an end to the deportation raids conducted since the start of the year targeting mothers, children and unaccompanied minors who have fled the violence in Central America.

The group of senators sent a letter to Pres. Obama urging his administration “not to focus its scarce resources on deporting vulnerable individuals who have no criminal record and were not represented by counsel during their removal proceedings.” Instead, they want the administration to start working on solutions to address the root causes of the problem.

Their letter states, “Deploying immigration raids upon this vulnerable population for the purpose of deterrence is an ineffective and unacceptable strategy. Immigration raids create fear and insecurity among immigrant communities in the United States. They will deter students from attending school and parents from seeking medical care, but they will not deter terrified mothers and children from fleeing life-threatening violence in their homelands.”

Data shows that although undocumented immigrants from Mexico account for the majority of undocumented immigrants in the country, immigrants from Guatemala, El Salvador and Honduras have surged and is touted to compare to what happened back in 2014. High murder rates and gang violence happening in these countries, called the Northern Triangle, have driven many families to flee.

Based on figures from the United Nations High Commissioner for Refugees (UNHCR), impunity and inadequate government capacity to address the violence have exacerbated in the region in recent years. Homicides in these countries remain unresolved. From 2010 to 2013, 95 percent of murders in the Northern Triangle were unsolved or unprosecuted.

This situation has prompted many families to flee in droves to seek refuge here in the United States. However, for the past two years, the Obama administration has sent them back. In January this year, the Obama administration conducted the first large-scale effort to deport Central American families and rounded up 121 individuals. ICE agents reportedly rounded them up at wee hours in the morning, only giving about five minutes for fathers, mothers and children to gather their belongings before they were made to board ICE vehicles.

Although it has received a lot of criticisms, ICE sources say the raids will continue and target illegal alien adults and minors whose asylum cases were denied and have been ordered removed from the country.

Apart from deportation, the government has also sent those families into detention centers while they plead their asylum cases. Even infants and small children are locked up in these detention facilities set up all over the country. Usually, it takes weeks before they are interviewed and they cannot leave the detention until they have passed their interviews.

Preparing for a Marriage-Based Immigration Interview

In a marriage- based adjustment interview, the couple must prove that the marriage was valid and in good faith from its inception and that it was not entered into for immigration purposes.

For couples who live together, have a common social life, do not have a huge age gap, have common interests and same cultural/ racial backgrounds, it is easier to get a petition approved. In other words, “conventional” marital situations usually get approved faster.

However, certain factors or situations or “red flags” could make USCIS want to take a close scrutiny at the marriage. Examples of these are multiple applications/ petitions filed by an applicant/ petitioner, short time between entry and marriage, unusual marriage history, children born during marriage to other parent, unusual or large age discrepancy between spouses, unusual cultural differences, low employment/ financial status of petitioner, and previous marriage to foreign nationals.

In one case, a foreign national who entered with a visitor’s visa remained for a period beyond the six-months given to him. After 5 years, he married a US citizen who filed an I-130 petition for her. During the interview, the officer noted that “there were no discrepancies in their answers” but that they had “no joint information”, neither of them worked and they lived with the US citizen’s mother. There were missing information about how they met that gave “red flags” to the officer.

It is best to go to the interview well prepared. The USCIS officer may ask questions about the data entries made on the I-130 petition. He may also inquire about how you go about your day-to-day life together. The officer may also inquire about the documents submitted with the petition so it is good if you will run through them a few times just to refresh your memory of the information you provided in the petition. Oftentimes, marriage-based interviews can make one falter or uncomfortable even if you have nothing to hide.

Practicing possible scenarios or interview questions is recommended. It can seem intimidating to be asked probing questions so it is advisable to prepare well.

It is not uncommon for USCIS officers to ask about personal details such as information about your relatives, your work and your friends. As long as you have nothing to hide and have a good faith marriage, do not be afraid when the immigration officer does that.

Lawyers’ role in the interview is limited to being observers and they will not be able to help you answer the questions. They, however, may ask the USCIS officer to clarify the question asked.

Be careful not to sign any document withdrawing the visa petition without consulting your lawyer. Do not sign any form stating that the marriage is fraudulent. At any point during the interview, you can ask to stop it and consult with your lawyer.

Paying attention to the question and answering that question is crucial. If the question demands a ‘yes’ or ‘no’ answer, answer it as such, then give an explanation if necessary.

It is of course unavoidable to make mistakes. While it is best to remember important dates like birthdays and anniversaries, oftentimes we find ourselves forgetting a few details. At any point during the interview, you can always go back and change or clarify your answer.

It is also okay to ask for clarification if you do not understand a question. Fully explain what you want to say. Say “I don’t know” or “I don’t remember” if such is the truth instead of making guesses, and don’t say a document exists when it doesn’t. Bear in mind that the officer may ask you to produce the said document later on.

DOJ Petitions For Rehearing of DAPA/DACA+ Case

It may not yet be end of the road for the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA+). On July 18, the Department of Justice filed with the US Supreme Court a petition to rehear United States versus State of Texas.

In its petition, the Department of Justice argued that “the Court should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance.”

The petition underscored that although it is exceedingly rare, it is not a new practice for the Court to grant a rehearing. In the past, it has also granted rehearing in other cases especially when the court was unable to obtain a decision due to a vacancy. It was not also uncommon that upon reargument, a majority vote was arrived at.

The petition highlighted the immediacy of the resolution of the case. With the Supreme Court’s deadlock on the issue, the preliminary injunction issued on February 16, 2015 by US district court Judge Andrew Hanen which was later affirmed on appeal by the Fifth Circuit, stays. And although the Fifth Circuit is only made up of three states— Texas, Louisiana and Mississippi, the injunction nevertheless effectively halted the implementation of the two immigration initiatives introduced by Pres. Barack Obama back in 2014.

“The preliminary injunction prohibits the government from implementing the Guidance anywhere nationwide; there is no reason to expect that the district court would issue a permanent injunction that is narrower. Unless the Court resolves this case in a precedential manner, a matter of ‘great national importance’ involving an ‘unprecedented and momentous’ injunction barring implementation of the Guidance will have been effectively resolved for the country as a whole by a court of appeals that has divided twice, with two judges voting for petitioners and two for respondent States,” the petition stated.

This is a welcome development and one that has given a glimmer of hope to potential recipients. However, the rehearing depends on the confirmation of a ninth judge which may happen after the November US Presidential elections. The Court could dismiss the case for lack of standing of the plaintiff or reverse the decision of the Fifth Circuit thus allowing DAPA/DACA + to be implemented. It could also affirm the Circuit’s decision and uphold the injunction and the case would go back to the district court whose decision could eventually be appealed to the Fifth Circuit and the Supreme Court a second time.

While waiting for this new development to take some steps forward, it must also be noted that the Supreme Court’s ruling did not affect the president’s authority to establish priorities for the enforcement of immigration laws and the grant of deferred action. Shortly after the SC made its decision, Obama clarified that undocumented immigrant who are otherwise qualified under DAPA and DACA+ and have no criminal conviction, are still among the lowest priority for deportation. The Department of Homeland Security (DHS) therefore still has authority to review and grant individual request for deferred action.

The decision also did not affect the DACA which was announced by Obama back in 2012. Those who meet the program’s criteria established in 2012 may continue to apply – both first-time applicants and the DACA recipients who seek to renew their deferred action and employment authorization.

Based on estimates, there are about four million undocumented immigrants who could have benefited from DAPA and DACA+. Of that figure, there are still those who can avail of other forms of deportation relief. In fact, according to the American Immigration Lawyers Association (AILA), 14.3% of DACA-eligible population may qualify for other forms of relief, even more permanent than DACA+ and DAPA.

Immigration Reform After the November Election

The November election may still be months away but already, several groups are laying the groundwork for a new comprehensive immigration reform bill. This came on the heels of the recent Supreme Court deadlocked decision on President Barack Obama’s immigration initiatives- the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the Expanded Deferred Action for Childhood Arrivals (DACA+).

Immigration rights groups and advocates are already meeting up with lawmakers to discuss said reforms. Even Republican senators are seriously mulling over passing an even better immigration reform bill purportedly because of pressure from their Latino constituents. They are now bent on giving immigration reform another shot.

So while the Republican presidential nominee, Donald Trump, is singing his hardline stance of putting up a “wall” and deporting illegal foreign nationals, some of his party mates are singing a different tune and possibly drilling a hole in said “wall” and allowing for a more lenient approach to the issue of immigration as they are thinking of reviving the 2013 Comprehensive Immigration Reform (CIR) bill.

It must be remembered that right after the 2012 elections, the Republicans and the Democrats came together to form what is now dubbed as the Gang of Eight, the bipartisan group composed of four Republicans (Sen. Jeff Flake, Sen. Lindsey Graham, Sen. John McCain and Sen. Marco Rubio) and four Democrats (Sen. Michael Bennett, Sen. Richard Durbin, Sen. Bob Menendez and Sen. Chuck Schumer).

The group was responsible for crafting a comprehensive immigration bill, fully known as the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, that would have granted undocumented foreign nationals the chance to gain legal status and eventually citizenship while at the same time, securing the border.

The bill also aimed at making the immigration system more responsive to economic needs by reducing visa backlogs and providing for a fast track permanent residence for US graduates with advanced degrees in science, technology, engineering and math (STEM) degrees.

Also in the bill were a more intensive use of the E-verify system by businesses to ensure that their workers have the legal right to work in the US, the creation of a W visa for low-skilled temporary workers, the replacement of the H2-A visa program for agricultural workers with a “blue card” for immigrants, and the placing of a higher cap for H-1B visas and imposing restrictions on companies that are found to be abusing the system. Provisions on the creation of a program to provide jobs to low-income and minimally-skilled American youth were also included.

The bill, however, did not make it in the House of Representatives. A number of provisions in the bill were objectionable to the Republicans. Concerns were expressed about the E-verify being vulnerable to hacks and database abuses and about the H-1B visa program being manipulated to reduce company costs by outsourcing cheaper foreign labor, resulting in more and more Americans having to train foreign nationals who will eventually take their jobs away from them.

Now, some members of the Gang of Eight want to do it again. “I’m going to take the Gang of Eight bill out, dust it off and ask anybody and everybody who wants to work with me to make it better to do so,” said Sen. Graham. Sen Jeff Flake also shares his enthusiasm. “We’ll do another autopsy after the next election and we’ll determine what we’ve got to do,” he said. He was referring to an in-depth review of the 2013 bill and see what went wrong.

Tips on How to Apply for War Veterans Parole

The US Citizenship and Immigration Services (USCIS) has started accepting applications under the Filipino World War II Veterans Parole Program (FWVP).

To further guide applicants about the whole process, USCIS recently released additional information on eligibility and filing requirements.

Under the said program, one may be eligible to request parole if (1) he is a US citizen or a lawful permanent resident (LPR) living in the United States; (2) he has established that he is either a Filipino WWII veteran or the surviving spouse of such individual; (3) he, the war veteran, or his surviving spouse, has filed a Form I-130, Petition for Alien Relative, for a family member and it was approved on or before a visa parole was requested; and (4) an immigrant visa is not yet readily available.

The beneficiary on the I-130 petition filed by the war veteran or his surviving spouse must have a qualifying legal relationship with the war veteran on or before May 9, 2016. The spouse and children under 21 years old of the principal beneficiary may also be eligible for the benefit but only if the principal beneficiary is approved for parole.

In cases where the WWII veteran and his spouse are both deceased, principal beneficiaries may request parole on their own behalf provided that USCIS approved the petition while the petitioner was alive, and then reinstated the approval after death. In cases where the petitioner died before the USCIS approved the petition, the beneficiaries can still seek to avail of the visa parole as long as they can prove that at least one beneficiary of the I-130 petition was living in the US at the time of the petitioner’s death and continues to live here in the US.

The self-petitioner must prove that he/she is the son, daughter, brother or sister of the deceased veteran and the veteran was living in the US at the time of death and that the veteran’s spouse is also deceased.

Principal beneficiaries who are already here in the US may benefit from the program but they need to appear before a USCIS office or consulate abroad to fully process their visa parole application. If found eligible to travel, the said relatives will be given travel documents to allow them to return to any port of entry in the US. This may not be as easy for those whose departure from the US may trigger certain bars. It is important to consult an immigration lawyer before pursuing any further steps.

For beneficiaries to be considered for the FWVP, Form I-131, Application for Travel Document must be submitted for each qualifying family member. A copy of the Notice of Action approving the I-130 petition or any evidence that USCIS has approved the petition in behalf of the relatives must be included along with the applicable fees or a fee waiver request, if eligible, and Form I-134, Affidavit of Support for each family member. Also needed are supporting documents that the petitioner is either a Filipino World War II veteran whose military service has been recognized by the US Department of Defense or the surviving spouse of said veteran. A self-petitioner, in addition to the ones earlier mentioned, should establish their relationship with the veteran and that the veteran’s spouse is deceased.

The parole is temporary and is good for three years. Work authorization may be obtained upon submitting a Form I-765 application. The parole in and of itself does not lead to an immigration status. The parolee is expected to apply for green card once his visa number becomes available. He should not remain in the US past the period of his parole without applying for adjustment of status or a parole extension.

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Pointers for Filing Petition to Remove Green Card Condition

Conditional permanent residents (CPRs) who gain their residency status through their marriage to a US citizen or lawful permanent resident (LPR) need to file Form I-751 (petition to remove the conditions on residence) within 90 days prior to the expiration of their status.

It is important that after the receipt of their green card, CPRs take note as to when it will expire because untimely filing of the I-751, especially without good cause, can have serious implications.

USCIS will usually inform the CPR through a notice at the start of that 90-day window. However, non-receipt of a notice cannot be considered an excuse because the USCIS is not required to give the CPR any prior notice.

If the CPR is still married to the US citizen spouse, they must file the I-751 jointly. They have to submit documents to show their bona fide marriage and continued marital union. The documents may include proof of common residence and shared responsibility, such as lease agreement naming both spouses as tenants, deeds and mortgages in both names; combined financial resources and joint responsibility for liabilities, such as joint checking and savings account statements, insurance policies showing the other spouse as beneficiary, joint federal and state tax returns and joint utility bills.

If the couple is divorced or if the marriage has been terminated due to the death of the US citizen spouse or LPR or the CPR was battered or subjected to extreme cruelty, then he/she must file a petition by himself/herself coupled with a request for a waiver of the joint filing requirement.

If the I-751 petition is not filed, the CPR will lose his or her legal status and may be subjected to removal proceedings. Once the green card has expired, it cannot be used for travel or employment purposes.

If the deadline has lapsed but the CPR wants to submit the I-751, he/she may file it late as long as it is filed with a written explanation as to what caused the delay. USCIS may approve the petition as long as it can show good cause like hospitalization, death of a family member, financial difficulties, being away on active military duty, among others. Corroborating evidence of the good cause should also be included.

If the USCIS determines that there is a good cause for the delay, then it will proceed to adjudicate the I-751. If it is not convinced, however, it will deny the petition for failing to comply with the requirements or issue a Request for Evidence (RFE). It can also refer the case to the local immigration service center for an interview.

In one case, a husband was delayed in filing his I-751 petition for five (5) years and was threatened with deportation. We represented him and despite the long delay and his long separation from his wife, we were able to have his permanent residence status reinstated.

Visa Parole for Families of Filipino Vets to Start June 8

Good news to the Filipino veterans of World War II! They don’t have to wait very long before being reunited with their loved ones as the US Citizenship and Immigration Services (USCIS) recently announced that it will grant parole to the beneficiaries of approved family-based immigrant visa petition and allow them to stay in the US while awaiting their immigrant visa numbers.

Due to the active lobbying of advocacy groups like the Asian Americans Advancing Justice (AAJC), the Filipino Veterans Equity Center and Filipinos for Justice, President Barack Obama announced the parole visa program last year but it was only this month that the USCIS released a policy guideline for its implementation.

This program called Filipino World War II Veterans Parole Policy (FWVP) will benefit approximately 2,000 to 6,000 Filipino-American World War II veterans who are living here in the US.

The said program was created in recognition of the significant contribution of the Filipino veterans during World War II. According to the policy announcement, more than 260,000 Filipino soldiers enlisted to fight for the US during the war. This is also an acknowledgment that these veterans and their surviving spouses are in need of the support and care that can only be given by their family members especially at their advanced age.

Those who may benefit from FWVP are individuals who are beneficiaries of approved I-130 Petition for Alien Relative, including any accompanying or following-to-join spouse and children who were approved on or before the start of the filing date of the parole request. The qualifying relationship with the veteran or petitioning relative must have existed on or before May 9, 2016 and the veteran or petitioning relative is residing in the US or in the case of deceased petitioners, was residing in the US at the time of death.

It is also important to establish the Filipino veteran’s World War II military service. The policy provides that the said military service must have been previously recognized by the US Department of Defense and must have been described in Section 405 of the Immigration Act of 1990 (IMMACT ’90).

The said act requires the veterans to fall within the following categories: (1) Those listed on the final roster prepared by the Personnel Division of the US Army as having served honorably in an active duty status with the Philippine Army during the war; (2) those listed on the final roster prepared by the Guerilla Affairs Division of the US Army as having served honorably in an active duty status within a recognized guerilla unit; (3) those who served honorably in an active duty within the Philippine Scouts or within any component of the US Armed Forces in the Far East (USAFFE) from September 1, 1939 to December 31, 1946.

When any proof of such military service is not included in the visa parole application, the USCIS will send a Request for Evidence (RFE).

As to who are eligible for visa parole depends on who the petitioner is. If the veteran is the petitioner himself, beneficiaries could be any one who falls in any family-sponsored preference category, except those considered as immediate relatives—spouse, parents and unmarried children under 21 years of age—because visa numbers are always readily available to them anyway. If the petitioner is the surviving spouse of the war veteran, beneficiaries could only be their children.

In cases where the petitioning relative dies before a visa number becomes available to his beneficiaries, eligible individuals may seek parole in their behalf in cases where USCIS has approved the reinstatement of an I-130 petition for humanitarian purposes.

Changing Jobs While Adjustment Application is Pending

The US Citizenship and Immigration Services (USCIS) has recently provided guidance on when an applicant for adjustment of status is allowed to port or change to a new employment. The new employment must be in the same or similar occupational classification as the original job.

The job flexibility provision was in the American Competitiveness in the 21st Century Act of 2000 (AC21) but it was not clear under the law or regulations what “same” or “similar” meant. The new guideline memo clarifies the procedure in determining eligibility for the job change.

To establish that both jobs are in a similar occupational classification, the applicant may submit proof about the Department of Labor (DOL) occupational classification codes assigned to the jobs; the duties for each job, the skills, experience, education, training, license or certification required for each job; the wages offered and any other relevant evidence. The change to another occupational classification may involve lateral movement, career progression or self-employment.

In determining whether the new job is the same or similar occupational classification as the employment in the initial I-140 petition, the USCIS will look as to whether the jobs are “identical”, resembling in every relevant respect or in the same kind of category or thing.

To be eligible to change or port from one job to another, the beneficiary’s adjustment of status application must have been pending for 180 days or more.

Also, the Form I-140, Immigrant Petition for Alien Worker, must have been approved or is approvable when concurrently filed with the adjustment application. There must be a valid job offer and the beneficiary must be eligible for employment preference classification.

If both the I-140 petition and the I-485 application remain pending for more than 180 days, the beneficiary is not automatically entitled to port. The USCIS must first determine whether the initial I-140 petition is approvable. If USCIS finds that it is, then it will adjudicate the adjustment of status application to determine whether the new position is in the same or similar occupational classification. The I-140 petition must be approved before portability is granted.

If the I-140 petition is subsequently denied, the beneficiary cannot invoke the portability rule.

The USCIS adopted the decision of the Administrative Appeals Office (AAO) in the Matter of Al Wazzan relating to the portability rule as it applies to denied I-140 petitions.

In that case, the applicant insisted that he was entitled to port under AC21 based on his new job offer because his I-485 application had been pending for more than 180 days at the time USCIS denied his application. The I-140 petition filed on his behalf was denied by the USCIS on the ground that the applicant was not entitled to the employment classification sought.

The AAO held that portability rule cannot apply where the I-140 petition is not valid. A denied I-140 petition cannot be considered valid regardless of whether the petition was adjudicated 180 days or more after the filing of the adjustment of status.

An I-140 petition is considered valid if filed on behalf of an alien entitled to the employment classification sought. Put simply, the portability rule cannot apply where there was never a valid petition from which to port.

H-4 Employment Authorization Guideline

A question and answer guideline concerning the employment authorization for certain H-4 dependent spouses was recently released by the USCIS. It provides information on eligibility, the application process, adjudication and processing times.

The H-4 employment authorization rule took effect on May 20, 2015. Many have already applied for the benefit but further clarification of the process was needed.

Under the rule, eligible are the spouses of H-1B nonimmigrants who are the beneficiaries of an approved I-140 immigrant petition or who have been granted extension beyond six years under the AC21 law.

The I-140 need not have been filed by the current H-1B employer or by the employer who had filed the H-1B petition.

The I-140 must not have been revoked. Both the spouse and the dependent must be maintaining their nonimmigrant status.

The authorization is unrestricted. This means that you as a dependent spouse may work anywhere or engage in self-employment or start a business.

If you file you must submit a paper I-765 application, not an electronic form, and submit supporting documents. Supporting documents include evidence of H-4 nonimmigrant status, evidence of your relationship with your H-1B spouse such as your marriage certificate and documents proving his/her H-1B status. This could be a copy of Form I-797, Notice of Approval for the Form I-129 filed on your spouse’s behalf. This could also be a copy of your H-1B spouse’s Form I-94, personal data page in his/her passport, visas on which he or she last entered the US and the latest US admission stamped in his/her passport.

If your spouse’s H-1B status is based on the AC21 law, you must include evidence that your H-1B spouse is the beneficiary of a Permanent Labor Certification Application filed at least 365 days before the expiration of his/her six-year stay. This could be a copy of a printout from the Department of Labor (DOL) showing the status of the Permanent Labor Certification Application filed on his/her behalf.

You may also submit proof that your H-1B spouse’s Form I-140 was filed at least 365 days before the expiration of his/her six-year stay as an H-1B. An example would be to include a copy of your H-1B spouse’s Form-I-797 Receipt Notice for the Form I-140.

If you are applying based on your spouse being a beneficiary of an approved Form I-140, submit a copy of the approval notice of his Form I-140 or if unavailable, anything that could explain why it is unavailable.

If you are unable to obtain the abovementioned documentation for whatever reason, sworn affidavits by non-parties who have direct knowledge of the relevant events and circumstances may likewise be submitted as substitute evidence.

While the I-765 is pending, you may travel if you are currently in status and meet all other admission requirements. If the I-765 is filed concurrently with your I-539 change of status to H-4, travel will be treated as abandonment of application.

Processing time is about 90 days. The employment authorization card cannot be used to enter and exit the US.

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