Seguritan US Immigration Articles

U Visa for Crime Victims

For fear of deportation, undocumented aliens who are victims of crimes choose to remain silent and are reluctant to provide law enforcement with information necessary for the prosecution of crimes. This is especially true for undocumented women and children who are most vulnerable to exploitation and abuse. The U visa addresses this plight of crime victims and offers them and their family members the protection they need.

The U visa is a temporary visa granted to victims of certain criminal activities which occurred in the United States, a U.S. territory or U.S. military installation or violated U.S. laws. The victim must have suffered substantial mental or physical abuse as a result of the criminal activity and must possess credible and reliable information about the criminal activity. Also, the victim must have been helpful, are being helpful or are likely to be helpful in the investigation and prosecution of the crime.

Among the qualifying criminal activities included are abduction, blackmail, domestic violence, extortion, involuntary servitude, witness tampering, obstruction of justice, perjury and false imprisonment, among others. Criminal activities also include rape, sexual assault, sexual exploitation, trafficking including attempt, conspiracy or solicitation to commit any of these crimes.

Application for U visa requires a law enforcement certification on Form I-918B. This form certifies that the qualifying criminal activity occurred and that the crime victim assisted, is assisting or is likely to be helpful in the investigation and prosecution of the crime. Among those who may sign the form are certifying officials of federal, state, local law enforcement agencies, prosecutors, judges and other investigative agencies such as family protective services, the Equal Employment Opportunity Commission, and the Department of Labor.

Crime victims are still eligible to receive U visas whether a conviction resulted or not. Even when the case is closed because the perpetrator could not be identified or that arrest was not made because the perpetrator fled, a law enforcement certification may still be issued for the crime victim.

Also, regulations do not place a time limit on the issuance of a law enforcement certification as it relates to the time when the crime was committed. So long as the crime victim assisted in the past to investigate and prosecute the qualified crime, a law enforcement certification may still be issued.

The visa is available to crime victims who are in the United States or abroad. If the crime victim is applying overseas, the Form I-918 petition must be filed directly with the USCIS Vermont Center. The individual may file for the U visa in a U.S. consulate abroad once the petition is approved. If the crime victim is already in the United States, the approval of the Form I-918 petition by the USCIS immediately grants the alien U nonimmigrant status.

If the petitioner is under 21, the spouse, children under the age of 21, parents and unmarried siblings under 18 may be included. If the petitioner is 21 years old or older, only the spouse and children under 21 may be included. A separate Form I-918 Supplement A must be completed for each family member. Once approved and the family members are overseas, they must apply for a visa at a U.S. consulate abroad.

Form I-918 petition may be filed even if the alien is in removal proceedings, has a final order of removal, deportation or exclusion. Once approved, the order of removal, deportation or exclusion will be deemed cancelled. Where a family member included in the petition also has a final order of removal, the order of removal is also deemed cancelled when the petition is approved.

There is a cap of 10,000 U visas each year. Family members do not count towards the cap. When the cap is reached, petitioners and their qualifying family members who are found to be eligible will be issued a Notice of Conditional Approval of U nonimmigrant status which will be valid until they are issued their visas in the next fiscal year. While on conditional approval, they can obtain work authorization. If they are in removal proceedings, the USCIS will also issue a deferred action.

When granted, the visa allows the alien to remain and work in the U.S. for four years. Extensions may be granted where the alien’s continued presence is necessary for the prosecution of the crime.

EB-3 Cut-Off Date for Philippines Advances in May

The May 2014 Visa Bulletin shows that the Philippine employment-based third preference (EB-3) cut-off date will jump by nineteen weeks from June 15, 2007 to November 1, 2007, and India by two weeks to October 1, 2003. The third preference cut-off date for all other countries will remain at October 1, 2012.

The employment-based second preference (EB-2) will remain current for all countries except China and India. China’s second preference cut-off date will move by five weeks to April 15, 2009 while India’s cut-off date will remain at November 15, 2004. All the other employment preferences will remain current for all countries.

The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 – March 8, 2007; F-2A – September 8, 2013; F-2B – February 1, 2007; F-3 – September 1, 2003 and F-4 – December 8, 2001.

The Philippines cut-off dates are: F-1 – February 1, 2002; F-2A – September 8, 2013; F-2B – June 22, 2003; F-3 – March 1, 1993 and F-4 – November 1, 1990.

The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued under certain preference categories. The cut-off dates in the Visa Bulletin are established to ensure that that the immigrant visas issued each year do not go beyond the limit established in the INA.

If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.

Because of the long wait period, beneficiaries of employment-based preference petitions, such as foreign nurses sponsored under the EB-3 category whose priority dates are before November 1, 2007 may be required to update their documents such as their visa screen certificate and professional license, among others.

Also, the USCIS has recently been requesting adjustment applicants to submit a new Form I-693 (Report of Medical Examination and Vaccination Record). Since about 2004, the USCIS has extended the validity of the civil surgeon’s endorsement on Form I-693 until the adjudication of the adjustment status application but effective June 1, Forms I-693 which are more than one year old will no longer be valid.

Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and who are outside the United States will have to apply for an immigrant visa at a consular post abroad. Those who are currently living in the U.S. may apply for adjustment of status.

Those with pending adjustment of status application will be allowed to remain and work in the U.S. while their adjustment application is being adjudicated. Beneficiaries of employment-based preference petition whose adjustment of status has been pending for 180 days or longer may transfer to another employer pursuant to the portability rule subject to certain eligibility requirements.

The portability rule under the American Competitiveness in the Twenty-First Century Act of October 2000 (AC21) allows an adjustment applicant to change employers if the new job is in the same or similar occupational classification, the Form I-140 has been approved or is approvable when concurrently filed with the adjustment application and the I-485 application has been pending for 180 or more.

The 180-day period starts from the date the I-485 application was received by the USICS as indicated in the USCIS receipt notice. If the adjustment applicant meets all the requirements, he may change employers under AC21. It is however advisable for the adjustment applicant to notify the USCIS after he starts his new employment in order to avoid Requests for Evidence or Notice of Intent to Deny from the USCIS.

Work Authorization for H-1B Spouse

The Obama administration has recently announced that it will propose rules that will allow certain H-1B spouses to work in the U.S. Under the current law, the dependent spouse of an H-1B nonimmigrant worker is not eligible to apply for work authorization.

The White House press release did not specify whether the proposed rule will be limited to a certain group of H-4 dependents or will allow all H-4 spouses to work. It simply indicated that the proposed regulation will allow “spouses of certain high-skilled workers on H-1B visas” to seek work authorization.

The draft rule could refer to dependent spouses of H-1B nonimmigrants who have been granted extension beyond the six-year limit under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).

A foreign worker is allowed a maximum period of 6 years on H-1B status. Under AC21, it may be extended when the H-1B worker is unable to adjust status before the end of the six-year period mainly because of delays in the adjudication of employment-based green card sponsorships and the unavailability of a visa number.

The U.S. Department of Homeland Security (DHS) made a similar proposal in its May 2012 Retrospective Review Plan Report. The May 2012 DHS report indicated that the proposal “would increase incentives of H-1B nonimmigrant workers who are allowed to extend their period of stay under AC21 as they complete the process to adjust status to that of a lawful permanent resident by providing parallel employment incentives to the H-4 spouse.”

The H-1B program is for foreign workers in specialty occupations. It has been frequently used by U.S. businesses to employ high-skilled foreign workers with degrees in science, technology, engineering and mathematics.

This year, the cap for H-1B applications was reached in the first five days of the filing season. The USCIS received a total of 172,500 H-1B petitions including those filed under the advanced degree exemption. A lottery was conducted to select the 20,000 petitions under the advanced degree exemption and the 65,000 cap-subject petitions.

The proposal to allow H-4 spouses to work is only one of the measures the White House is undertaking to make the United States “more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness.”

The draft rule is presently with the Office of Management and Budget (OMB). After initial clearance with OMB, it will be published as Notice of Proposed Rulemaking allowing the public to comment on it for at least 30 days. The proposed regulation in its exact form will not be released until published in the Federal Register.

Once the proposed regulation is in place, the qualifying H-4 visa holder will be issued an employment authorization document (EAD) which will allow them to work in the U.S. for the period indicated in the EAD. The validity of their EAD will be for the same period as their H-1B family member.

Adjustment of Status of Fiancé(e) After Divorce

The K-1 nonimmigrant visa allows the foreign fiancé(e) of a U.S. citizen a single entry into the United States for the sole purpose of marrying the K-1 petitioner. The marriage must take place within 90 days after entry. In the event the marriage does not take place within the 90-day period, the K-1 visa holder shall be required to depart the U.S.

Under the law, the fiancé(e) cannot change to any other nonimmigrant status and cannot be granted extension of stay. He is also barred from adjusting status except on the basis of the marriage to the K-1 petitioner.

If he adjusts status on the basis of his marriage to the K-1 petitioner, he will be granted conditional residence status. He can later file with his spouse a joint petition to remove the condition. If the marriage is terminated such as when the marriage ends in divorce, the foreign spouse can request waiver of the joint filing requirement.

If he has been married for more than two years at the time that he adjusts status, he is granted permanent and not conditional residence status.

What happens if the marriage is terminated before the adjustment of status application is adjudicated?

If the petitioner dies after marrying the K-1 beneficiary within the 90 day period but before the adjustment application is adjudicated, the foreign spouse is still eligible to adjust.

Also, a K-1 visa holder who divorced the original K-1 petitioner can still adjust to permanent residence status so long as the adjustment application is based on the marriage to the original K-1 petitioner.

The law does not require that the marriage still exists at the time the adjustment application is adjudicated. In order for a K-1 visa holder to adjust status, the applicant must demonstrate that that he entered into a good faith marriage with the K-1 petitioner within 3 months after entry and was not otherwise inadmissible.

In one case, the foreign fiancé(e) married the K-1 petitioner within 90 days from arrival and filed her adjustment application within the two-year conditional residence period. She divorced her K-1 petitioner within 2 years before the adjustment application was adjudicated. She was allowed to adjust status even after their marriage ended in divorce.

In another case, the marriage between the foreign fiancé(e) and K-1 petitioner took place within the 90-day period. They had a child together but were divorced more than 2 years after their marriage. He subsequently married another U.S. citizen. His adjustment application was denied on the ground that it was not adjudicated within two years from marriage.
On appeal, the Board of Immigration Appeals found the foreign spouse eligible to adjust status on the basis of his marriage to the original K-3 petitioner even if their marriage had terminated.

The law specifically precludes the K-1 visa holder to adjust status on the basis of marriage to any other U.S. citizen or in any other manner other than the marriage to the original K-1 visa sponsor. In a string of cases, the K-1 visa holder was barred from adjusting status on the basis of other visa petitions such as an approved I-140 petition, an approved family petition filed by a sister and an approved family petition filed by a U.S. citizen spouse other than the original K-1 petitioner.

Inadmissibility Waived Despite Fake Philippine Passport

Because of the stringent requirements for getting a U.S. visa, some applicants have resorted to extreme measures such as using a false name or assuming the name of another person. They carry this misrepresentation out by using a fake visa or passport.

Assuming that their misrepresentation is not detected at the port of entry, eventually their misdeeds will still catch up with them. When they apply for a green card, be it on the basis of a family-based or employment-based petition, they will be considered inadmissible due to fraud or misrepresentation.

The Immigration and Nationality Act makes inadmissible any alien who, by fraud or willful misrepresentation of a material fact, procures a visa, other documentation or admission to the U.S. or other immigration benefit.

Technically, fraud and material misrepresentation are different. Material misrepresentation requires a willful misrepresentation that is relevant to the alien’s eligibility for a visa. Fraud requires an intent on the part of the alien to deceive a consular or immigration officer, and the officer must believe and act upon the false representation.

In terms of practical effect, however, there is no difference between the two. An alien found to have committed fraud or material misrepresentation faces a lifetime bar from being admitted in the U.S.

The law provides for a discretionary waiver of this type of inadmissibility. The alien would need to show that his removal would cause extreme hardship to a qualifying relative if the waiver were denied.

Only spouses or parents who are U.S. citizens or lawful permanent residents are considered as qualifying relatives. Children, even though they are U.S. citizens, may not be qualifying relatives.

Extreme hardship has no definite meaning but depends on the facts and circumstances of each case. Many factors are considered in determining whether an alien has established extreme hardship to a qualifying relative.

These factors include the qualifying relative’s presence and ties in the U.S.; family ties outside the U.S; conditions in the country where the qualifying relative would relocate; financial impact of his or her departure from the country; and significant health conditions particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

In one case, the Administrative Appeals Office (AAO) sustained the appeal of a green card applicant from the Philippines whose waiver application was denied. The applicant had used a fraudulent passport in entering the United States.

She applied for adjustment on the basis of her U.S. citizen husband’s immigrant petition but was found inadmissible for procuring admission to the U.S. through fraud or misrepresentation. The USCIS adjudications officer believed that she was unable to demonstrate extreme hardship to her qualifying spouse.

The AAO disagreed and found that extreme hardship to the qualifying spouse was established.

The applicant presented medical records and sworn statements indicating that for many years she and the qualifying spouse had been struggling with infertility and that the applicant would need to undergo in vitro fertilization under the care of her current doctor. She needed to avoid stress and was already being treated for depression and anxiety.

She showed that if she were to be deported to the Philippines, her home country, she would need a new doctor. The husband also would not be able to afford to pay for medical care in the Philippines on his current salary. In fact, if the wife were forced to leave, the husband would not be able to afford basic monthly expenses with just his salary.

There was also evidence showing that the husband would suffer extreme hardship if he relocated to the Philippines with the applicant, such as losing his current employment of many years and experiencing serious allergies as he had in his past visits to the country.

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