Seguritan US Immigration Articles

DREAMERS’ Dilemma: To File or Not to File for DACA

Young immigrants known as Dreamers are in a dilemma after the election of Donald Trump as president. Should they file for DACA? Should those with DACA status file for renewal or travel under advance parole?

DACA (Deferred Action for Childhood Arrivals) is an executive action which was announced by outgoing US President Barack Obama back in June 2012 following the failure of the DREAM Act’s passage into law. It is lacking the force of law, and operating under the enforcement discretion of the Department of Homeland Security (DHS), USCIS and the Immigration and Customs Enforcement (ICE). It does not guarantee a path to citizenship but rather defers deportation to those who came to the US before turning 16 years old and have continuously resided in the country, gone to school and have no criminal records.

While it has helped a lot of young immigrants obtain work permits and travel authorization and be protected from deportation during Obama’s presidency, the reality is that executive actions can easily be undone by the next president. With Trump’s platform on undocumented immigrants, it is highly likely that he will end this executive action.

If and when Trump decides to totally scrap DACA, there is still uncertainty as to how USCIS will handle the situation. It is possible that if USCIS will terminate DACA completely, those holding valid work permits will no longer be able to renew. It is possible that the employment authorization and advance parole may remain valid until its expiration.

As of now, it is unclear if Trump will scrap the DACA immediately upon his assumption into office. Given that it usually takes about nine months for an initial DACA application to be adjudicated, it is safe to assume that any new application will not be adjudicated prior to his assumption in office on January 20, 2017. On the other hand, renewals of DACA application are processed quicker.

Thus, to avoid paying the DACA fees with no guarantee that it will not be rescinded, it may be best to defer any new initial DACA application until Trump has completely laid down his stand on the matter. On the other hand, those who plan to renew may opt to submit their DACA renewal as soon as practicable.

For DACA recipients who also intend to travel abroad but have not yet applied for their advance parole, any new Form I-131 application may not be adjudicated prior to January 20 given the current processing times. DACA recipients with advance parole should complete their travel and return to the US as soon as practicable and before January 20 to avoid any problems coming back. One should also bear in mind that the grant of an advance parole does not guarantee admission to the US. DHS may revoke or terminate any advance parole at any time.

Those intending to apply for the first time also have to take into consideration the risk they may be putting themselves into. Because DACA was created through an executive action, there is no statutory provision guaranteeing confidentiality. In fact, it somehow encourages people to come out from the shadows and divulge pertinent information like workplace or school location, in exchange for the promise of deferred deportation and protection. While the information disclosed in a DACA request is protected from disclosure to ICE and Customs and Border Patrol (CBP) for immigration enforcement purposes, there is no guarantee that this will remain the same in the coming months.

What is clear is that those who already applied for DACA already have their information in government hands. Thus, it does not appear that if one were to renew his DACA, that he will put himself in any additional risk. On the other hand, the submission of an initial application at this time would require disclosure of pertinent information that could potentially be used in case of sweeps or workplace raids that may be conducted later on.

Filing for Adjustment Even if Visa Not Immediately Available

This October which is the start of fiscal year 2017, adjustment of status applications may be filed even if a visa number is not immediately available for the priority date of the applicant. The date of filing the application rather than the date when a visa number is available determines when to file.

This is good news to those who have been waiting for a long time for their priority dates to become current. A pending adjustment application entitles the applicant to work authorization and travel permit.

Every year, there is a limit to the number of immigrant visas issued to various visa categories except those that do not need to be on the wait list like immediate relatives of US citizens since an immigrant visa is always available to them.

Family-based immigrant visas are capped at 226,000 and employment-based immigrant visas are capped at 140,000 annually. The United States Citizenship and Immigration Services (USCIS) and the Department of State (DOS) have established a guide to let applicants know when visa numbers will be available for their particular category.

As a guide, the DOS releases a visa bulletin every month. This lists the availability of immigrant visa numbers and likewise shows the backlogs in each category for a given month. The visa bulletin also shows when an application for adjustment of status (green card application) can be filed.

Up until last year, an application for adjustment of status could only be filed if the visa petitioner’s priority date was earlier than the cut-off date in a particular category. A priority date is generally the date when a relative or employer filed an immigrant visa petition on behalf of the beneficiary.

Starting in October 2015, the visa bulletin has adopted two charts per visa preference category— the Final Action Dates and the Dates for Filing Applications. Essentially, the Final Action Dates indicate when a visa is immediately available and the Dates for Filing Applications are the earliest dates when applicants may be able to apply. For purposes of adjustment of status application, the USCIS said that it will announce every month which of these two charts will be used to determine when application to adjust status may be submitted.

Ever since the start of this new revision, USCIS has used the Final Action Dates to indicate when foreign nationals can submit their application to adjust status (green card application). The Dates for Filing Applications have been used only to notify applicants as to when they can start assembling their documents for submission to the National Visa Center (NVC).

However, for the first month of the new fiscal year the USCIS has announced that adjustment applicants must use the Dates for Filing Applications. This means that they can file for adjustment without waiting for the availability of visa numbers.

If their priority date is earlier than the cut-off date in the chart for Dates of Filing Applications they may file for adjustment of status. For employment-based visa categories, EB-1 is now current worldwide. EB-2 is also current worldwide except for China and India. EB-3 is also current worldwide although the Philippines remains oversubscribed. For the Philippines, EB-3 shows a cut-off date of Sept. 1, 2013 which is about 34 months ahead of the Final Action Date.

For the family-based visa preference, the cut-off date for F1 for the Philippines is May 1, 2006; F2A is November 22, 2015 and F2B is February 1, 2007. The cut-off date for the F3 is January 1, 1995 and for the F4, it is April 1, 1994.

 

Judo Athlete Qualified for EB-1 Extraordinary Ability

The employment-based first preference visa (EB-1) is granted to persons of extraordinary ability. They don’t need a job offer and they may self-petition. It is one of the fastest ways to get a green card.

It is usually reserved for outstanding scientists, artists and professors. But recently, a judo athlete was able to successfully qualify under the category. In a decision reached by the Administrative Appeals Office, the self-petitioner, a judo expert from Korea was granted EB-1 status so he can teach future judo athletes here in the US.

A foreign national applying for EB-1 visa must demonstrate sustained national or international acclaim and give extensive documentation of his achievements.  This claim is best evidenced through a one-time achievement of a major, internationally recognized award, such as the Nobel Prize, an Oscar Award or an Olympic medal. However, it can also be proven by submitting evidence falling under at least three out of the ten regulatory criteria.

These ten criteria are the following: (1) receipt of lesser nationally or internationally recognized prizes or awards for excellence; (2) membership in associations in the field that demand outstanding achievement of their members; (3) published material about the alien in profession or major trade publications or other media; (4) evidence that the alien has been asked to judge the work of others, either individually or in a panel; (5) evidence of original contributions of major significance to the field; (6) authorship of scholarly articles; (7) display of the alien’s work at artistic exhibitions or showcases; (8) evidence of performance in a leading or critical role for organizations that have a distinguished reputation; (9) evidence of high remuneration in relation to others in the field; and (10) evidence of commercial success in the performing arts.

He was able to demonstrate that he satisfied three of the ten regulatory criteria discussed above. He showed records that he won first place in national and international competitions. He also showed that his professional or athletic accomplishments were made the subject of an article published in Seoul Yonhap News, Korea’s largest news organization. The piece featured his performance in various rounds of tournaments. He also presented that he has a position in the national judo team which is effectively the most difficult association membership for a judo athlete to obtain, especially in Korea. Even his membership in the national team suffices to show one of the ten criteria because only those with the highest level of performance make the cut.

Because he was able to satisfy three of the ten criteria, the next is for the adjudicator to look at the evidence in totality and find out whether the foreign national meets the required level of expertise for the category. His level of expertise must be that of a small percentage of individuals who have risen to the very top of their field of endeavor, and that he has sustained national or international acclaim and his achievements have been recognized in his field of expertise.

Here, the petitioner was able to satisfy the board that he has a long, successful and recent career as a judo athlete. From 2000 to 2012, he was a member of the Korean national team that sweeps awards in the sport in the Olympics, World Championships, Masters, Grand Slam and other prestigious international competition.

According to the EB-1 visa program, the foreign national must seek to continue working in the same field of endeavor and that his entry will substantially benefit prospectively the U.S.

The petitioner seeks to establish a judo academy and train promising athletes and eventually coach the American judo team in the Olympics. Given all that he has demonstrated, the USCIS was convinced that petitioner may transition from athlete to coach and remain in his field of expertise.

Immigrant Visa Waiting List is Long

123,524 applicants were added last fiscal year to the immigrant visa waiting list in the various preference categories subject to numerical limits.

A report from the National Visa Center (NVC) and submitted to the Department of State shows that as of November 1, 2015, there were 4,455,274 family-based applicants, an increase of 123,524 or 2.9% from last year. The number of employment-based visa applicants was 100,747 up by 9,837 applicants from last year.

The Philippines placed second over-all, with 417,511 registrants. The other countries that round up the top five in terms of number of registrants are: Mexico- 1,344,429; India- 344,208; Vietnam- 282,375; and China- 260,265.

These numbers include not only the principal applicants or petition beneficiaries but also their spouses and children entitled to derivative status. However, they do not include spouses, unmarried children under 21 years of age, and parents of US citizens who are not subject to the numerical limitations.

The figures do not also include the significant number of applicants for adjustment of status. Also excluded are those who failed to respond within one year to the visa application instruction letter sent by the National Visa Center notifying them of visa availability. In such case, the petition is considered inactive and not counted in the waiting list totals.

For fiscal year 2016, or from October 1, 2016 through September 30, 2017, the total number of visas to be issued is 226,000 in family-based preferences and 140,000 for employment-based preferences. The total per-country limit will be 25, 620, which translates to decades-long wait times for applicants in certain categories from countries such as Mexico, India, Vietnam, China and the Philippines.

The numbers of registrants for the family-based preferences (F) are: F1 (adult unmarried sons and daughters of US citizens)- 322,786; F2A (spouses and children of permanent residents)- 276,022; F2B (adult sons and daughters of permanent residents)- 480755; F3 (married sons and daughters of US citizens)- 825,991; and F4 (brothers and sisters of US citizens)- 2,549,718.

The Philippines has the second highest number of family preference registrants with 388,214. The per-country limit on the annual number of family preference visas for FY 2016 is 15,280.

Mexico ranked first in all family-based preferences. The Philippines ranked second in F2B and F3 categories; fourth in the F2A category, and sixth in the F4 category. More cases may be added to the F1 waiting list because of the automatic conversion pending 2B cases into F1 cases upon the naturalization of the petitioner, but this can be avoided by availing of the opt-out provision under the Child Support Protection Act. By opting to remain as an F2B case, a longer wait time under the F1 category is avoided.

For employment-based preferences (EB), the breakdown of registrants is as follows: EB1 workers with extraordinary ability, outstanding professors and researchers, and multinational managers and executives)- 3,474; EB2 (advanced degree professionals and aliens of exceptional ability)- 11,440; EB3 (skilled workers and professionals)- 61,584; EB3 (other workers)- 6,208; EB4 (special immigrants and religious workers)- 379; and EB5 (employment creation)- 17,662.

The Philippines ranked first in the EB3 (skilled workers) category, fourth in the EB2 and third in the EB3 (other workers) categories. Registrants from the Philippines comprise 30% of the total for employment-based preferences at 29,297, of which 96% fall under the EB3 (skilled workers) category for the Philippines. For FY 2016, the per-country limit is only 9,825.

 

 

 

Green Card for Aliens of Extraordinary Ability

Foreign nationals of extraordinary ability are eligible to become lawful permanent residents under the employment-based first preference category (EB-1). They do not need a job offer from a U.S. employer, which means that they can self-petition or file the immigrant petition themselves.

Under the EB-1 category there is also no labor certification requirement. Since there is currently no visa backlog, the foreign national as well as his spouse and children do not have to wait long after the approval of the petition before being able to immigrate or receive their green cards. If they are in the U.S., the I-140 petition and I-485 adjustment application may be concurrently filed.

The demand for a EB-1 visa is comparatively low because of the high standard under this category. This is especially true of individuals who want to qualify as aliens of extraordinary ability. Outstanding professors or researchers and certain multinational executives and managers are also eligible for EB-1 classification.

To be an alien of extraordinary ability, one must demonstrate sustained national or international acclaim and give extensive documentation of his achievements.

Sustained national or international acclaim is best evidenced through a one-time achievement of a major, internationally recognized award, such as the Nobel Prize, an Oscar Award or an Olympic medal. However, it can also be proven by submitting evidence falling under at least three out of the ten regulatory criteria.

These ten criteria are the following: (1) receipt of lesser nationally or internationally recognized prizes or awards for excellence; (2) membership in associations in the field that demand outstanding achievement of their members; (3) published material about the alien in profession or major trade publications or other media; (4) evidence that the alien has been asked to judge the work of others, either individually or in a panel; (5) evidence of original contributions of major significance to the field; (6) authorship of scholarly articles; (7) display of the alien’s work at artistic exhibitions or showcases; (8) evidence of performance in a leading or critical role for organizations that have a distinguished reputation; (9) evidence of high remuneration in relation to others in the field; and (10) evidence of commercial success in the performing arts.

The foreign national may submit other comparable evidence if these criteria do not readily apply to his field of expertise.

In adjudicating EB-1 petitions, USCIS officers will take a two-part approach. The adjudicator will first look at the evidence to count how many evidentiary prongs were met. If at least three of the criteria were met, the adjudicator will find that the self-petitioner or the beneficiary has established the minimum eligibility requirement to qualify as an alien of extraordinary ability and proceed to the next step.

The adjudicator will look at the evidence in totality and find out whether the foreign national meets the required level of expertise for the category. The evidence must show that he has the level of expertise of that small percentage of individuals who have risen to the very top of their field of endeavor, and that he has sustained national or international acclaim and his achievements have been recognized in his field of expertise.

Additionally, the foreign national must seek to continue working in the same field of endeavor and that his entry will substantially benefit prospectively the U.S.

Because of its very strict requirements, the EB-1category is certainly not for everyone. But for those who can meet demonstrate eligibility as aliens of extraordinary ability, it offers the one of the fastest routes to permanent residence.

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