Seguritan US Immigration Articles

Waiver of Joint Filing Requirement when Divorce is Pending

A marriage that is less than two years old when the alien spouse receives a green card results in conditional permanent residence for that spouse for a period of two years. Conditional residents and permanent residents have the same rights and restrictions under the law, except that conditional residents must have the conditions on their residence removed.

This is done through an I-751 petition jointly filed by the spouses with the USCIS, along with evidence of their valid marriage, within 90 days of the second anniversary of the alien spouse’s green card.

If the marriage does not last even for a period of two years and the I-751 is not signed by both spouses, the law allows the alien spouse to file a waiver of the joint filing requirement, which is also made on the I-751. The spouse can seek a waiver if the marriage was entered into in good faith but has been terminated through a final divorce or annulment.

But what if the divorce is not yet final, the 90-day window is running out, and the petitioning spouse refuses to sign the joint petition? The USCIS has clarified how it adjudicates I-751 petitions if the marriage has not been terminated but the spouses are legally separated or have initiated divorce or annulment proceedings.

If the divorce or annulment proceeding is still pending, the alien spouse can file the I-751 and request a waiver of the joint filing requirement. The adjudicator will issue a Request for Evidence (RFE) and give the alien spouse 87 days to give proof of the termination of the marriage. Usually the divorce will take place during this almost three-month period, which will allow the alien spouse to submit a copy of the final divorce decree.

Note that the alien spouse must still establish eligibility for the waiver by submitting evidence of a good faith marriage. This includes proof of joint ownership of property, such as a deed with both spouses’ names; joint tenancy, such as a lease agreement naming the spouses as tenants; and commingling of finances, such as income tax returns, bank statements, credit card bills and utility bills with the names of both spouses.

Birth certificates of children born to the marriage are a good evidence of the bona fides of the marriage. Affidavits of third parties, family pictures, documentation of vacations, communications addressed to the spouses may also be submitted.

If the alien spouse is eligible for a waiver and the divorce is already final, the I-751 petition will be approved and the conditions on permanent residence will be removed.

If the alien spouse cannot submit the divorce decree, or otherwise fails to respond to the RFE or to establish eligibility for the waiver, the I-751 will be denied and the alien’s conditional LPR status will be terminated.

The case will then be processed for issuance of a Notice to Appear in removal proceedings. At that stage, however, the alien spouse will have another chance to establish eligibility for a waiver before the immigration judge. The alien spouse can present a divorce decree, if already available at that time, or ask for continuance from the judge until the divorce is final.

On the other hand, if the petitioning spouse consents to sign the I-751 petition but a divorce or annulment proceeding is already pending, the alien spouse will receive an RFE giving him/her 87 days to submit the divorce decree and to request that the joint petition be treated as a waiver petition. This allows the alien spouse to request a waiver without having to re-file the I-751 after the divorce.

If the alien spouse submits decree and establishes eligibility for the waiver, the USCIS will grant the waiver and remove the conditions on the permanent residence.

But if the decree is not produced, the petition will be treated just like a joint petition. The adjudicator will look for sufficient evidence that the marriage was entered in good faith and determine if an in-person interview is needed.

If the adjudicator is satisfied that the marriage was bona fide, he/she will approve the I-751 petition and remove the conditions. Otherwise, the petition would be denied, the alien spouse’s conditional LPR status terminated, and the case is processed for issuance of a notice to appear in removal proceedings.

USCIS Releases Deferred Action Data and Updates Guidelines

More than 82,000 deferred action requests have been accepted by the USCIS since the program was implemented on August 15, 2012. Although only 29 requests have been completed as of September 13, 2012, 1,660 requests are awaiting review. More than 63,000 biometrics appointments have been scheduled so far.

Although the first few decisions were made rather quickly, officials still estimate that final determinations could take between four and six months.

The USCIS also recently updated its guidelines in response to additional inquiries regarding the policy and the procedure.

One of the new FAQs should give some measure of assurance to employers who may be asked for employment verification by deferred action applicants to support their request. It states that employers may, as they deem appropriate, give documentation verifying such employment.

Except when there is evidence of egregious violations of criminal statutes or widespread abuses, that information would not be shared with the Immigration and Customs Enforcement (ICE) for civil immigration enforcement purposes under the provision of Immigration and Nationality Act making the employment of unauthorized aliens unlawful.

Employment records can be submitted by deferred action applicants to prove physical presence on June 15, 2012 and continuous residence for five years beginning June 15, 2007.

The USCIS also addressed the question of whether one must document presence in the U.S. for every day or every month of the 5-year period. The updated guidelines state that the requestor must account for as much of the period as reasonably possible. Although direct evidence of presence for every day or month is not required, it would be helpful if there is evidence of residence during at least each year of the period. Gaps in the documentation may raise doubts as to continued residence and result in a request for evidence.

The requestor may submit two or more affidavits of third parties to explain gaps in his continued residence. Note that the affidavits cannot be used to establish the continuous residence requirement itself.

The USCIS also clarified item 9 of Form I-765 Application for Employment Authorization that is filed with a deferred action request. The item asks the applicant to list all Social Security numbers that the applicant has ever used. The USCIS explained that the applicant must list those Social Security numbers that were officially issued to him by the Social Security Administration.

The updated guidelines also clarify that if an individual travels outside of the United States after August 15, 2012, he would not be considered for deferred action as a childhood arrival. He must first be granted deferred action and applied for and received advance parole before he may travel outside of the U.S. Travels before August 15, 2012, on the other hand, will be assessed in terms of whether they were brief, casual and innocent or whether they break continuous residence.

If the deferred action request has been approved, the individual may apply for advance parole if he wants to be able to travel outside the United States. This is done by filing Form I-131 Application for Travel Document, and paying the filing fee of $360. The applicant must indicate the circumstances for which international travel is sought. Advance parole is generally granted only when the travel is for humanitarian, educational or employment purposes.

Meanwhile, as the deferred action program moves forward, the Obama administration has decided to exclude its recipients from the scope of the Affordable Care Act, like other undocumented immigrants. According to federal officials, individuals granted deferred action are not “lawfully present” residents under the health care reform law who would otherwise be eligible for Medicaid or children’s health insurance program.

Immigrant Visa Processing at a U.S. Consulate Abroad

Many foreign nationals become lawful permanent residents by applying for an immigrant visa at a U.S. consulate abroad. This pathway to a green card is called “consular processing” and it requires a personal interview before a consular officer before the applicant can obtain an immigrant visa.

Consular processing is available in both family-based and employment-based immigration cases. Generally, petitioners filing I-130 and I-140 petitions will choose whether visa processing will take place in the United States through what is called adjustment of status, or at a U.S. consulate abroad. If consular processing is chosen, the USCIS will forward the approved I-130 or I-140 petition to the National Visa Center.

Each approved immigrant visa petition will be assigned an NVC case number. The first three letters of the case number designate the U.S. consulate, followed by the year the petition was received by the NVC. The case number applies to the entire family but each family member must submit an individual immigrant visa application and civil documents and pay the required fees.

The NVC then sends a fee bill to the visa applicant or to the attorney of record, if any. For family-based cases, there is a separate fee for the review of the Form I-864 Affidavit of Support. Fees may be paid online through electronic fund transfer or by mail with a cashier’s check or money order.

After fees are paid, the NVC will send visa application instructions to the applicant. Documents to be submitted generally include the Form DS-230 Parts I and II, copy of the passport, two passport-style photos, original or certified copy of birth certificate, and an original or certified copy of a police certificate from each country where the applicant resided for 6 months or longer after age 16.

In family-based cases, the applicant must also submit a Form I-864 signed by the sponsor, along with supporting documents such as tax returns, W-2 form and a letter of employment. This requirement ensures that the applicant will not become a public charge. In employment-based cases, the applicant should submit a letter from the petitioning employer confirming the employment.

When all required documents have been submitted, the NVC will schedule the interview and send instructions to the applicant. The instructions will tell the applicant if any documents must be brought to the appointment, which will depend on the type of the application and on the circumstances of the applicant. The notice will also have a list of physicians who may conduct the required physical examination which will screen for relevant medical conditions. After the appointment is scheduled and instructions are sent, the file is transferred from the NVC to the consulate.

Visa applicants must appear personally at the interview. They should be prepared to respond to questions pertaining to their eligibility for the visa, including questions on prior U.S. immigration history and any criminal history. Marriage-based visa applicants should expect to be asked about their marital relationship. Employment-based applicants must be prepared to discuss their work history and answer questions regarding the proposed employment. The types of questions will vary from one applicant to another, especially since consular officers have wide discretion when it comes to questions to be asked.

If the applicant is found to be inadmissible to the U.S. and therefore ineligible for an immigrant visa, he/she may be able to apply for a waiver of the ground/s of inadmissibility. Many visa applicants get denied because of prior unlawful presence, misrepresentation, or criminal convictions.

If the visa application is approved, the consular officer issues the visa and stamps the applicant’s passport. The visa will be valid for travel to the U.S. within 6 months of issuance. The applicant will also be given a sealed envelope which he/she must give the officer at the port of entry. Finally, the new immigrant’s green card will be produced by the USCIS and mailed to the address provided in the visa application.

Law Against Licensing of Nonimmigrant Workers Invalidated

A federal appeals court recently struck down a New York state law restricting the issuance of pharmacist licenses to U.S. citizens and lawful permanent residents (LPRs). The court ruled that such law violated the constitutional guarantee of equal protection.

The plaintiffs in Paidi v. Mills were non-immigrant aliens residing in New York, most of whom held H-1B temporary worker visas. Many of the plaintiffs had applied for a green card while some already had employment authorization documents. All of them obtained a New York pharmacist’s license. However, it was only a “limited” type of license which was granted under a waiver provision of the law.

Under the New York statute, only U.S. citizens and LPRs were eligible to obtain a pharmacist’s license. The law used to provide for a three-year waiver of the citizenship/LPR requirement, but this waiver provision expired in 2006. Licenses issued under the waiver were set to expire in 2009, which meant that the plaintiffs would no longer be able to work legally as pharmacists in the state.

This led them to file a lawsuit in district court against the officials in charge of enforcing the law. The plaintiffs claimed that the law was unconstitutional because it violated the equal protection clause of the U.S. constitution. The district court agreed with the plaintiffs and permanently enjoined the state officials from enforcing the law.

On appeal to the U.S. Court of Appeals for the Second Circuit, the state officials argued that the court should review the law using the rational basis standard. This is a low-level standard of judicial review which simply means that if there is a rational basis to support the law, the law should be upheld.

The Circuit Court rejected this argument. It said that state statutes that give disparate treatment to aliens are reviewed using the highest standard of analysis, called strict scrutiny.

For a law to pass strict scrutiny, it must further a compelling government interest. The law must also be narrowly drawn, meaning that there must be no other less restrictive means to meet that government interest.

The Court held that strict scrutiny should be applied to the New York law that discriminates against aliens who have been lawfully admitted to reside and work in the United States. The court found that the state had no compelling justification for discriminating based on alienage.

The court brushed aside the state’s argument that the non-immigrant pharmacists’ potential transience was a threat to public health. The Court said that there was no evidence that nonimmigrant pharmacists were more transient than LPR and citizen pharmacists, and that citizenship or permanent residency did not guarantee against potential transience.

The statute was also not narrowly tailored, said the Court, because there were other ways to limit the dangers of potentially transient pharmacists, such as through malpractice insurance.

Even if the law withstood the equal protection challenge, the Court said that it would not survive a challenge on preemption grounds. Federal preemption means that a state law can be invalidated if it conflicts with federal law.

Although the case was decided on equal protection grounds, the Court couldn’t help but note that New York has created an obstacle to the accomplishment and execution of federal immigration law. Congress has allowed non-LPRs and non-citizens to perform specialty occupations
as long as they were professionally qualified, but by making immigration status a professional qualification New York caused them to be ineligible to do so.

In concluding that the law was unconstitutional, the Court reiterated a Supreme Court dictum that “the assertion of an authority to deny to aliens the opportunity to earn a livelihood when lawfully admitted to the state would be tantamount to the assertion of the right to deny them entrance, for in ordinary cases they cannot live where they cannot work.”

Because of this ruling, New York may not legally make immigration status a qualification for a professional license. But because other courts have decided the issue of alienage and state licensing differently, this decision has created a circuit split which the Supreme Court will most likely have to resolve soon.

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