Seguritan US Immigration Articles

You May Be A U.S. Citizen Without Knowing It

Most people think that a person who is born outside of the United States can only become a U.S. citizen through naturalization or by deriving citizenship through a parent’s naturalization. For many people, naturalization is a process fraught with years of waiting and much expense.

However, a person born outside the U.S. can become a citizen through the acquisition of citizenship from one or both parents who are citizens. Sometimes, the parents themselves do not even know that they were U.S. citizens.

In order to transmit citizenship to a child, the citizen parent generally must have resided in the United States for a certain period before the child’s birth. The law in effect on the date of the child’s birth will apply and dictate what requirements must be met.

In a recent case, the court held that an American father could not transmit his citizenship to his son because the law in effect at the time of his son’s birth in 1931 required his father to have resided in the U.S. The Nationality Act of 1940 liberalized the residency requirement by allowing a citizen parent to have resided in the U.S. or one of its outlying possessions such as the Philippines, but the law could be not be applied retroactively.

Depending on the applicable statute, residence in a possession of the U.S. could be considered residence in the United States. Because of this, knowing the ways by which citizenship could be acquired is especially useful for Filipinos because the Philippines was an “outlying possession” of the United States from 1898 to 1946.

If a person is born to parents who are both U.S. citizens, the child’s acquisition of citizenship depends on whether at least one parent resided in the United States prior to the child’s birth. If the child was born on or after January 13, 1941, residence in a U.S. possession is counted as U.S. residence. The child is not subject to the citizenship retention requirement, meaning that he/she need not reside in the U.S. for certain time periods in order to become a U.S. citizen.

If only one parent is a U.S. citizen, the child could be a citizen depending on the date of birth, whether the parent has prior U.S. residence, and whether the child meets the retention requirements.

A child may be a citizen if born abroad before May 24, 1934 to a U.S. citizen father or mother with prior U.S. residence. The child has no citizenship retention requirement.

If the child was born on or after May 24, 1934 but before January 13, 1941, the child’s parent must have resided in the U.S. and the child must generally have 2 years of continuous physical presence in the U.S. between the ages of 14 and 28.

If born on or after January 13, 1941 but before December 24, 1952, the citizen parent must have at least 10 years of prior U.S. residence, 5 years of which were after age 16. The child must also have two years of continuous physical presence in the U.S. between the ages of 14 and 28.

If the child was born on or after December 24, 1952 but before November 14, 1986, the citizen parent must have been physically present in the U.S. for at least 10 years before the child was born, 5 years of which were after age 14.

The prior residence requirement for the citizen parent is only 5 years, 2 of which after age 14, if the child was born on or after November 14, 1986.

In some cases, people did not realize that they are U.S. citizens until they were placed in removal proceedings and they had the good sense of not conceding alienage. If you believe that there is U.S. citizen among your direct-line ancestors, it pays to carefully examine your background because you may have a claim for U.S. citizenship after all.

USCIS Requests for More Evidence Raise Concern

There has been a recent increase in the number of Requests for Evidence (RFE) issued by the USCIS particularly in I-751 petitions and employment-based I-485 applications.

Evidence which was previously sufficient to meet the applicable standard of proof for I-751 petitions to remove conditions seems no longer adequate. The USCIS has become more stringent and is requiring more documents to prove good faith marriage and continued marital union.

In employment-based I-485 adjustment of status applications, boilerplate RFEs have been issued requiring documentation of continuous employment authorization from the date the Form I-485 was filed to the date of the RFE and verification of job offer from the original or new employer.

As a general rule, an RFE is issued where there are missing or incomplete information or documentation or the adjudications officer needs more evidence to fully evaluate the application or petition. The request will indicate what evidence is needed and the deadline for the response.

The USCIS has the discretion to issue an RFE or Notice of Intent to Deny (NOID) in appropriate circumstances. There are some instances however where the USCIS may issue an outright denial without first issuing an RFE or a NOID.

Last June 3, the USCIS issued a policy memorandum to its personnel clarifying the role of RFEs and NOIDs in the adjudication process. It emphasized that RFEs should not be avoided but should issue where the facts and law warrant it. The memorandum lists general principles that an adjudication officer should follow to determine whether an RFE should issue.

The memo states that where the essential elements for eligibility are met using the applicable standard of proof, the adjudications officer shall approve the application or petition without issuing an RFE. The adjudications officer, on the other hand, should issue an RFE if the initial evidence submitted is incomplete or additional evidence is required to meet the applicable standard of proof. If it is determined however that no additional evidence can cure the deficiency, the officer shall issue a denial.

The issuance of a NOID in some instances is required before denying the immigration benefit requested. Where the request for an immigration benefit is made on Form I-800A (relating to adoptions), Form I-800, and Form I-485 (failure of a physician to comply with the conditions of his National Interest Waiver), the issuance of a NOID is required.

The USCIS also deems the issuance of a NOID appropriate where there is little or no evidence submitted or where the individual does not warrant the favorable exercise of discretion even if he has met the threshold eligibility requirements. Also, where a derogatory information is uncovered and is not known to the individual, the officer is required to issue a NOID.

Generally, USCIS will adjudicate the application or petition based on the new evidence submitted. However, it may issue follow-up or additional RFEs where the response opens up a new line of inquiry. A NOID in some cases is issued after the USCIS receives the response to the RFE.

In the meantime, USCIS will put the petition or application on hold. If no response is received on the set deadline, it will decide on the basis of its records and the decision will generally be unfavorable. It is therefore important to timely file the response with the requested evidence to successfully overcome the RFE.

Immigration Reform Needed to Address Nursing Shortage

The nursing profession is one of the fastest growing careers in the United States. The number of employed registered nurses is expected to grow 26% from 2010 to 2020, making it the top occupation in terms of job growth. Licensed practical nurses and licensed vocational nurses are expected to increase 22%. Even during the economic downturn, 182,000 RNs were employed.

The high demand for nurses and healthcare workers in general can be attributed to the growing and aging population. By 2025, there will have been 50 million more Americans than there were in 2006, and every day for the next twenty years 10,000 Americans will reach 65 years. By year 2020, four out of every ten patient visits will be by baby boomers.

Because of the aging baby boom generation, the demand for healthcare will continue to grow at a high rate, so much so that by 2030 the U.S. is projected to have a shortage of more than 900,000 nurses. The Affordable Care Act law will further raise the demand as the law expands insurance coverage to more than 30 million Americans by 2014.

The increase in nursing school enrolment is at best only modest and far from sufficient to meet the demand. In 2011, the increase was only a little over 5%. At the same time, however, the average age of nurses has gone up and more and more nurses are nearing retirement age. It is predicted that nurses over 50 years old will soon comprise about a quarter of the entire RN population.

Given the magnitude of the shortfall and the imminence of the surge in demand, domestic measures will no longer be sufficient to avert the shortage. Immigration rules that have been in place specifically to restrict the entry of foreign-educated nurses must be changed in order to ensure that patient care is not compromised.

For instance, most RNs do not qualify for the H-1B visa for “specialty occupations” because employers generally do not require a bachelor’s degree for the position. To be eligible for H-1B classification, an RN would have to be in a supervisory or very specialized position.

The limited number of immigrant visas and long waiting times have also contributed to the deficit of qualified nurses. Most foreign nurses are eligible for classification under the employment-based third preference (EB-3) category for skilled workers. However, under EB-3 an employer would have to wait between five to more than ten years before a visa becomes available to its sponsored nurse.

The visa retrogression has undeniably hampered the recruitment of much needed healthcare workers from foreign countries, including the Philippines. For the past six years since the retrogression began, thousands of qualified nurses have simply been waiting for their priority dates to reach the cut-off for visa availability under the EB-3 category.

Unsurprisingly, not all of them end up pursuing their visa application. Some of them have simply been discouraged by the delay, while some are lured by equally promising professional opportunities in other countries. The U.S. therefore loses the benefit of their skills and talent.

While immigration rules remain restrictive and recruitment of foreign nurses is sought to be kept at a minimum, patients face increasingly longer wait times in understaffed hospitals or are placed in the care of overworked nurses. Urgent action in reforming immigration law is needed to ensure that the health of millions of Americans is not endangered.

Travel Guidelines for F-1 Students who Change to H-1B

An H-1B petition may be filed not earlier than April 1 of any given year or six months before the start of the following fiscal year on October 1. In some cases, the F-1 status or Optional Practical Training (OPT) period of a student who is a beneficiary of an H-1B petition expires before October 1. The cap-gap provision addresses this problem and grants an automatic extension of the F-1 status and OPT period allowing the student to remain and work in the United States.

To be eligible under the cap-gap provision, the F-1 student must be a beneficiary of a timely filed petition requesting change of status to H-1B with an employment start date of October 1. Those benefiting from this provision should be aware of the repercussions of travelling abroad during the cap-gap period.

The USCIS construes travelling outside the United States during the cap-gap extension as an abandonment of the application for change of status. Leaving the United States during this period will mean not being able to re-enter the U.S. as a student and being required to obtain an H-1B visa at a U.S. consulate abroad.

The H-1B petition filed on behalf of an F-1 student on OPT who leaves the U.S. during the cap-gap period may still be approved by the USCIS; however, the application for change of status will be considered abandoned. He will not be able to return to the U.S. immediately as he will be required to undergo normal visa application process abroad which could be subject to delays and longer wait.

An F-1 student who is on OPT with a valid Employment Authorization Document (EAD) through October 1, on the other hand, may travel outside the United States and should be able to re-enter. Documents required to be readmitted as a student include a valid passport with a valid F-1 visa stamp, Form I-20 endorsed for travel by a designated school official (DSO), a valid EAD and a letter of OPT employment. Keeping these documents always in hand while travelling will avoid delays at the port of entry.

The number of days spent overseas must be considered when travelling during OPT. The maximum number of days for unemployment during OPT is 90 days. This includes days spent travelling abroad unless it is a leave authorized by the OPT employer or is part of the OPT. The F-1 student must carry the letter from the OPT employer when travelling to avoid delays or difficulties when inspected at the border.

An F-1 student who already finished his course of study may remain in the United States during the cap-gap period. The cap-gap period automatically extends his F-1 status provided the H-1B petition was filed before his course of study ended. The cap-gap period starts from the time when his course of study ended including the 60-day grace period.

An F-1 student who is still in school through October 1, on the other hand, may travel abroad and re-enter the U.S. even with an approved H-1B petition and change of status application. He must however bring the required documents and be able to prove nonimmigrant intent. He must be in the U.S. on October 1 when his change of status to H-1B takes effect.

Obtaining a new F-1 visa abroad to re-enter the U.S. with an approved H-1B petition will be very difficult. Because a professional job in the U.S. contradicts nonimmigrant intent required for an F-1 visa, the visa application may be denied.

Some F-1 students may want to apply for their H-1B visa abroad. In this case, they should consider the processing times at their respective U.S. consulates. If they are issued their visas abroad, they may re-enter the U.S. ten days prior to the employment start date on October 1.

J-1 exchange students unlike F-1 students are not covered by the cap-gap provision. However, change of status to H-1B for J-1 exchange students will not be a problem if their authorized stay in the U.S. remains valid through October 1 or when the change of status to H-1B takes effect.

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