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Immigration Reform Still Possible This Year

With the recent government shutdown and the self-inflicted beating the Republican-controlled House of Representatives experienced resulting from it, many are wondering whether there is still hope for immigration reform this year.

The President announced immediately after the government shutdown ended the urgent need to pass a law fixing the broken immigration system. Although opposition from Republican House members continue to stall the reform bill, using the “shutdown loss” as more reason to be “less than willing” to support it, GOP Rep. Mario Diaz-Balart of Florida indicated in an interview that there are still House Republicans who are working out a solution to legalizing the 11 million undocumented in the country.

The proposed solution involves a piecemeal approach where House Republicans could pass a separate measure dealing with border security and later on pass another measure placing the 11 million on probationary status. The legalization, however, can only move forward if E-verify is operational after five years. The goal, according to Rep. Diaz-Balart, is to command the support of a majority of Republicans.

Also, Republican House members who support reform believe that they can bring together a majority of Republican caucus to pass certain bills, thus, moving the debate to a committee of House and Senate negotiators who could try to negotiate on a comprehensive package. The final deal will ultimately address the problem of the undocumented.

So far, measures involving border security and making it easier for high-skilled workers and farm laborers to get visas have won the support of many House Republicans. The House Judiciary Committee has approved bills which address single issues on immigration but none dealing with legalization of the undocumented.

Democrat House members, on the other hand, remain firm in demanding a vote on a comprehensive reform bill similar to that passed in the Senate. According to Minority leader Nancy Pelosi, 28 Republicans have expressed their support for a path to citizenship.

Meanwhile, leaders of business, labor unions and religious organizations joined forces on October 29 to pressure the House to pass the immigration reform bill. The concerted lobbying effort involved over 600 leaders and focused on 150 Republican House members from 40 states. Sponsors included the U.S. Chamber of Commerce, the National Immigration Forum, FWD.us, a political action group set up by Silicon Valley executives including the founder of Facebook, Mark Zuckerberg, and the Partnership for a New American Economy, led jointly by Mayor Michael R. Bloomberg of New York, Rupert Murdoch and Bill Marriot Jr.

House Speaker John A. Boehner of Ohio and Majority Leader Eric Cantor of Virginia expressed their support to pass their own version of the immigration bill this year. When asked whether the House can still act on immigration reform despite the fact that it has only four legislative weeks left, Speaker Boehner said, “I still think immigration reform is an important subject that needs to be addressed. And I am hopeful.”

As GOP-Rep. David Valadao of California pointed out, “If anybody has the power to bring it to a vote it’s him,” referring to Rep. Cantor who sets the House Calendar.

The immigration system is broken and ignoring it is not good for the country. Many studies have shown that comprehensive immigration reform would expand the nation’s economy. With the intense lobbying efforts and pressure from all sectors of society, we hope that the GOP-controlled House finally address the problem and pass the immigration reform bill this year.

Green Card for Ministers and Religious Workers

Religious workers may qualify for permanent residence as a special immigrant. They can apply within the United States through adjustment of status, or from abroad by obtaining an immigrant visa at the U.S. consulate. Typically but not always, the religious worker is already in the U.S. on R-1 or temporary religious worker status.

The beneficiary of the special immigrant worker (I-360) petition may be a minister or a religious worker. A minister is fully authorized and fully trained according to a religious denomination’s standards to conduct religious activities, such as a priest, minister, rabbi or imam.

The minister must be able to provide a certificate of ordination or similar documents, and documents reflecting acceptance of the beneficiary’s qualifications as well as evidence of completion of theological education in an accredited institution.

Religious workers, on the other hand, are those who are working in a religious vocation or occupation and are authorized to perform traditional religious duties. These include religious instructors, religious counsellors, and missionaries.

The beneficiary must have been a member of the denomination for at least two years immediately preceding the filing of the petition. He also must have been working as a minister or religious worker, either abroad or lawfully in the U.S., for at least two years immediately before the filing of the petition.

The job offered must be full time or at least 35 hours per week. The petitioner must show proof of how it intends to compensate the beneficiary, such as financial statements, bank statements, budget showing sums sets aside for salary. Other types of evidence that can be submitted include W2 forms of the beneficiary if already employed by petitioner, tax returns, and documents showing that a car or room and board will be provided

Submitting sufficient documentation is important. In one case where the petitioner only submitted pay records of a missionary’s salary for one out of the minimum 2 years, the USCIS found that the pay records did not show beneficiary’s continuous, full-time employment.

The petitioning organization must make several attestations in the petition. For example, it must establish that it is a non-profit organization by providing documentation of its tax exempt status from the Internal Revenue Service.

The petitioner must also state how many members there are in the denomination, how many petitions have been filed in the past 5 years, and how many employees are currently employed on religious worker status.

Several years ago, a study concluded that 33% of visas granted in the religious worker program were based on fraudulent information. Because of this, the USCIS now requires an on-site inspection of the petitioning organization before it will approve the I-360 petition. The site visit allows the USCIS to verify the existence of the petitioner’s organization. The site visits allow the USCIS to deter fraud by checking the existence of the organization, inspecting the records and interviewing personnel.

The religious worker visa program for non-ministers has been extended through September 30, 2015. Ministers are not affected by this sunset date.

Non-minister religious workers are subject to an annual cap of 5,000 but there is no cap for those entering the U.S. solely for the purpose of carrying on the vocation of a minister.

Prior Mother’s Sham Marriage Does Not Bar Stepchild Petition

When a US citizen petitions his spouse for a green card, he may also file a petition for his spouse’s child if the marriage creating the stepchild-parent relationship took place before the child’s 18th birthday. As immediate relatives of the US citizen, separate petitions must be filed for the spouse and stepchild.

Under immigration laws, a “child” is defined as an unmarried person under twenty-one years of age and includes a stepchild who was under 18 years at the time of the marriage creating the stepchild relationship.

To benefit from the status as stepchild, it has been held that “no qualification beyond a valid marriage creating the step-relationship should be imposed.” A previous ruling that the step-parent should have an “active parental interest” in the child was abandoned. The only requirement therefore is that the marriage between the child’s natural parent and step-parent is valid.

What if the I-130 petition for the spouse is denied, will this mean that the petition for the stepchild will also be denied?

In a recent case decided by the Board of Immigration Appeals (BIA), it was ruled that although the petition for a spouse is denied under Section 204(c), this does not prevent the approval of the petition filed on behalf of the spouse’s child as a stepchild. Section 204(c) bars the approval of a subsequent petition filed on behalf of a beneficiary who was previously petitioned as a spouse of a U.S. citizen or lawful permanent resident and the marriage was found to have been entered for the purpose of evading immigration laws.

In that case, the U.S. citizen married the beneficiary before her child’s 18th birthday. The U.S. citizen filed an I-130 petition for his spouse and her child as his stepchild. The petition for the spouse was denied by the Citizenship and Immigration Services because it found that the beneficiary had a prior marriage with another U.S. citizen and the marriage was a sham marriage. Thus, the petition of her current spouse was denied under Section 204(c).

The petition for the stepchild was also denied. According to the USCIS, since the petition for the spouse was denied, the petition for the stepchild was no longer valid.

The BIA disagreed, saying that Section 204(c) does not apply to the stepchild. It only applies to the beneficiary who was previously accorded the status of spouse based on marriage found to have been entered into for purposes of evading immigration law. It said that the stepchild was not a party to the previous marriage of the mother and his relationship to the petitioning stepfather was not related to the prior fraudulent marriage.

The denial of the petition for the spouse does not invalidate the step-child parent relationship and does not bar the petition filed on behalf of the stepchild. However, the BIA stressed that the marriage between the child’s natural parent and step-parent has to be valid. A sham marriage cannot create a valid step-child relationship. The BIA therefore granted the appeal and remanded the case to the USCIS to further consider the merits of the visa petition.

Fight for Immigration Reform Gains Momentum

Tens of thousands of people joined the demonstrations and rallies held in 150 sites nationwide last October 5 to pressure Congress to pass the immigration reform bill. Advocates dubbed the day, the “National Day of Immigrant Dignity and Respect.”

The protests took place in over 40 states. In the State of California alone, demonstrations were held in 21 cities. The larger rallies took place in Los Angeles, San Diego and Boston. In New York, the march started in Cadman Plaza in Brooklyn and crossed the Brooklyn Bridge. Many of the rallies were conducted before the offices of House Republican lawmakers.

Part of the “major show of force” was the concert and march for immigration reform held on October 8 where thousands of people gathered at the National Mall in Washington, D.C. Multi-Grammy award winner, Los Tigres del Norte and artist Lila Downs performed during the concert. More than 150 protesters, including 8 House members, were arrested for civil disobedience.

Immigrant advocates remain hopeful that immigration reform will pass as House Democrats initiated measures to put pressure on the Republican majority. On October 2, Minority leader Representative Nancy Pelosi of California introduced their own version of a comprehensive immigration reform bill which mirrors that of the Senate-approved bill on major points. Pelosi said that there were enough Democrats and Republicans in the House to pass the bill.

The House Democrats’ immigration plan includes a path to citizenship for the undocumented; however, it does not include the border security measures which helped win over many conservative Republicans in the Senate. In place of the proposed border security measures, it would require the Department of Homeland Security to map out a plan to ensure the arrest of 90% of illegal crossers across the entire southern border within 5 years.

Although at present, no Republican member is a sponsor of the bill, this still comes as good news to advocates especially since the bipartisan House group’s efforts to come up with the bill failed last month. Representative Pelosi challenged Speaker John Boehner (R-Ohio) to put the immigration bill for a vote on the floor this year.

Several House Republican leaders have indicated that “passing comprehensive immigration reform remains a top Republican priority.” Representative Cathy McMorris Rogers who chairs the House Republican Conference said despite the government shutdown, her party is still committed to “rewrite the nation’s immigration laws.”

Meantime, a number of smaller immigration bills are expected to move onto the House floor in late October or early November. The bills already approved in the Judiciary Committee level involve enforcement and visas for highly skilled workers.

While Congress continues to refuse to act on the immigration reform bill, California has adopted a number of bills expanding immigrant rights. Governor Jerry Brown recently signed into law the Trust Act which restricts federal agents from detaining undocumented immigrants who are non-criminals or minor offenders. He also signed the bill allowing qualified undocumented immigrants to become licensed attorneys as well as the bill allowing the issuance of driver’s license to the undocumented.

With unceasing and intensified efforts, nationwide campaigns, and growing support even within the Republican party, advocates are hopeful that the comprehensive immigration reform bill will be passed by the end of the year.

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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