Seguritan US Immigration Articles

Green Card for Teachers

Employment of teachers is expected to grow in the near future. This positive outlook includes teachers at all learning levels – pre-school, kindergarten, elementary and high school – but the opportunities are greater in certain fields, such as math, science and special education, and in some geographic areas.

In the United States, there is a history of recruitment of foreign teachers, particularly from countries such as the Philippines, India and Russia, in order to meet the demand from the increased student enrolment and the need to replace aging teachers.

Foreign teachers who have a job offer from a U.S. employer, usually a school district, individual school or state education agency, and who wish to work in the United States on a permanent basis must obtain an employment-based green card under the EB-2 preference category or the EB-3. The November 2014 cut-off date for EB-3 (worldwide) is June 1, 2012 while EB-2 is current for all countries except China and India.

The process of obtaining a green card involves three broad steps, which begins with the labor certification from the U.S. Department of Labor. The next two steps involve the filing of the immigrant worker petition by the employer and the teacher’s adjustment of status (if the teacher is in the U.S.) or immigrant visa application (if abroad).

Before the U.S. employer can file an immigrant petition for the teacher, it must submit an application for labor certification using ETA Form 9089. The DOL’s program is called Program Electronic Review Management (PERM).

The procedure begins with the employer obtaining a prevailing wage determination prior to filing the PERM case. The prevailing wage is determined according to the job offered, the geographic region, the skill level or “job zone” assigned to the position, which in turn depends on the required education, experience and level of supervision for the position offered. The employer must offer at least 100% of the prevailing wage rate.

Next, the employer must conduct a recruitment by placing a job order with the State Workforce Agency in the area of intended employment for at least 30 days. The required recruitment steps include two Sunday newspaper ads and three additional recruitment methods and notices at the workplace.

U.S. worker applicants who meet the minimum requirements for the position must be interviewed. The employer must document its reasons for rejecting minimally qualified U.S. workers and have lawful, job-related reasons for their rejection. If the employer is unable to recruit U.S. workers after testing the labor market, it can proceed to file the labor certification application.

The DOL will either certify, deny or audit the application. If the employer is chosen for an audit, it must respond to the audit letter and submit the required documentation. Even after responding to the audit letter, however, the employer may be directed to conduct a DOL-supervised recruitment.

As one can imagine, the labor certification process is cumbersome and quite costly. Although teachers seeking classification under the employment-based third preference (EB-3) category are required to go through this process, teachers who can qualify under the second preference (EB-2) category can ask for a waiver of the labor certification requirement if they can show that it is in the national interest of the United States.

Once the ETA Form 9089 is certified, within 180 days the employer must file the Form I-140 immigrant petition for the teacher. After approval of the I-140, when the priority date – usually the date the PERM case was filed – is reached and a visa number becomes available, the teacher can file the adjustment of status application or the immigrant visa application with the U.S. consulate overseas.

Roll-back of EB-3 Visa Preference Possible This Fiscal Year

The November 2014 Visa Bulletin shows that the cut-off date of the Philippine employment-based third preference (EB-3) for skilled workers, professionals and other workers will jump by eight months from October 1, 2011 to June 1, 2012. But a roll-back may occur later in the current fiscal year should demand for visa numbers by nurses and therapists with significantly earlier priority dates dramatically increase.

The EB-3 cut-off date for all other countries except China and India will also move forward by eight months, to June 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 three weeks to December 8, 2009 while India’s cut-off date will retrogress by more than four years, to February 15, 2005. All the other employment preferences will remain current for all countries.

Because of the retrogression, Indian nationals in the U.S. with EB-2 priority dates earlier than May 1, 2009 should file for adjustment before the end of October.

The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 (unmarried sons and daughters of U.S. citizens) – June 8, 2007; F-2A(spouses and children of permanent residents) – March 1, 2013; F-2B (adult unmarried sons and daughters of permanent residents) – January 1, 2008; F-3 (married son and daughters of U.S citizens) – December 8, 2003 and F-4 (brothers and sisters of U.S. citizens) – February 8, 2002.

The Philippine cut-off dates are: F-1 – November 1, 2004; F-2A – March 1, 2013; F-2B – January 1, 2004; F-3 – June 8, 1993 and F-4 – May 1, 1991.

The Department of State’s (DOS) predictions on visa availability in the coming months were also published in the November 2014 Visa Bulletin.

The DOS predicts that the EB-3 cut-off date worldwide including the Philippines will continue its rapid forward movement for the next several months.

China’s EB-3 cut-off date is also expected to rapidly move forward. The DOS predicts that such movement is likely to result in increased demand and may require “corrective” actions possibly as early as February 2015.

Meanwhile, little, if any movement at all, is expected for India’s EB-3 cut-off date. Mexico’s EB-3 cut-off date, on the other hand, is expected to remain at the worldwide date.

With the rapid advance of the worldwide EB-3 cut-off date, a significant increase in the demand for immigrant visa numbers is expected under this category. Once the demand increases at a greater rate, it will impact the cut-off date situation.

The EB-2 cut-off date is expected to remain current for all countries except China and India. China’s EB-2 cut-off date is expected to advance only by three to five week over the next several months while no forward movement is expected for India’s EB-3 cut-off date.

The EB-5 for investors is current for China but a cut-off date may be established as early as May 2015.

All the other employment preferences are expected to remain current for all countries.

The cut-off dates for family-based preference categories are expected to move slowly in the coming months. The worldwide preference cut-off dates for F-1 is expected to move by two to three weeks; F-2A by three to five weeks; F-2B by six to eight weeks; F-3 by one to three weeks and F4- by two or four weeks.

The DOS explained that the projections for the Family and Employment categories indicate what is likely to happen during each of the next three months based on current applicant demand patterns.

Ways to Avoid Deportation

Hundreds of thousands of immigrants are deported from the U.S. each year. For fiscal year 2013, deportation under the Obama administration totaled 438,421, according to the immigration enforcement statistics recently released by the Department of Homeland Security (DHS). The number is nearly a 5 percent increase from the 418,397 deportations in 2012.

According to the report, the DHS apprehended 662,483 individuals. 178,371 were informally returned to their home country without a removal order.

Aliens who were returned were those who appeared to be inadmissible or deportable and were given the option to voluntarily go back at their expense. Mexicans ranked first in the number of returnees, followed by Canadians and Filipinos.

The report also reveals that out-of-court removals were at an all-time high. 363,000 individuals or 83 percent of all removals were removed without a court hearing. 193,032 individuals or 44 percent were expedited removals and 170,247 or 39 percent were reinstatements of prior removal orders.

Formal removal or deportation is a harsh punishment with serious consequences which include, among others, being barred from entering the U.S. for several years.

According to the American Immigration Council, “these rapid deportation decisions often fail to take into account many critical factors, including whether the individual is eligible to apply for lawful status in the United States, whether he or she has long-standing ties here, or whether he or she has U.S.-citizen family members.”

A noncitizen placed under deportation or removal proceedings may be eligible for relief from removal. Reliefs include voluntary departure, asylum, adjustment of status and cancellation of removal.

A voluntary departure allows the individual to return to his home country at his own expense without the stigma of formal removal.

An asylum is granted to an individual who is unable to return to his home country because of past persecution or well-founded fear of future persecution based upon his race, religion, nationality, membership in a particular social group, or political opinion.

Adjustment of status as a relief is available to an individual who is the beneficiary of a petition filed by a family member or an employer and a visa number is immediately available.

Cancellation of removal as a discretionary relief may be availed of by a lawful permanent resident or a non-permanent resident.

It may be granted to a permanent resident if he has been residing in the U.S for at least five (5) years as a permanent resident, has continuously resided at least seven (7) years after his lawful admission and has not been convicted of an aggravated felony.

This relief may be granted to a nonpermanent resident if he has been continuously present in the U.S. for at least ten (10) years and has been a person of good moral character and during that time has not been convicted of an offense that would make him removable and must prove that his removal would result in exceptional and extremely unusual hardship to his spouse, parent, or child who is a U.S. citizen or lawful permanent resident.

What To Do If Your Immigration Case Is Denied

If the USCIS denies an application or petition, it will send a denial notice to the applicant or petitioner explaining the reasons for the denial. The applicant or petitioner may appeal the decision to the USCIS Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA). The denial notice will provide information about his appeal rights.

The applicant or petitioner, with certain exceptions, may also file a motion to reopen or reconsider. If there is no right to appeal, the applicant or petitioner may still file a motion with the USCIS. Also, where the option to appeal is available and the decision made on appeal is still unfavorable, a motion to reopen or reconsider may be filed.

In a visa petition case, the beneficiary cannot file an appeal or motion unless he is also the petitioner such as in the case of a VAWA self-petitioner, widow/er of a citizen and other visa petitions where the beneficiary self-petitions.

When an applicant or petitioner files an appeal, he is requesting a higher authority of the original deciding office to review the decision due to the incorrect application of law or misinterpretation of pertinent facts of the case.

Generally, a decision denying a family-based petition is appealable to the BIA. The appeal is made on Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of an INS Officer, and is filed with the office that originally made the decision. Most appeals, with certain exceptions, are made on Form I-290B, Notice of Appeal or Motion. The denial notice will provide the instructions as to which form to use and where to file it.

When the applicant or petitioner appeals the decision to the AAO, the adjudicating officer who made the original decision will review the record. If the officer determines that reopening or reconsidering the case is not warranted, the case will be forwarded to the AAO or the BIA.

The appeal must be filed within the set period indicated in the denial notice which is generally 30 days from the date of the decision. Shorter period may apply to some cases. There is no extension for the set deadline.

A brief may be submitted with the appeal. The brief and other supporting evidence may be filed concurrently with the appeal. However, it may also be submitted after the appeal is filed. The applicant or petitioner is not required to submit a brief; however, he must provide an explanation as to why he believes the original decision was made in error. If the applicant or petitioner opts not to file a brief, failure to submit at least an explanation as to why the decision was made in error may result in the denial of the appeal.

When the applicant or petitioner files a motion to reconsider or reopen, he is requesting the adjudicating officer who originally made the decision to review it. A motion to reopen must be based on factual grounds such as the discovery of new evidence or changed circumstances and must be supported by affidavits and other documentary evidence. A motion to reconsider on the other hand must establish that the decision was incorrect based on an incorrect application of law and must be supported by pertinent precedent decisions.

Most motions are filed on Form I-290B, Notice of Appeal or Motion, generally, within 30 days from the date of the decision. Although a brief is not required, it may be filed with the motion. If not filed, the applicant or petitioner must provide a sufficient explanation as to why he believes the decision was made in error.

The USCIS tries to adjudicate motions within 90 days from receipt. If the motion is denied or dismissed, it may be appealed to the AAO. Although it may take longer, the AAO attempts to resolve appeals within six months from receipt.

In some cases, the USCIS can waive the fee for filing an appeal or motion as long as the fee for the underlying petition or application can also be waived.

Undocumented Immigrants May Now Join the Military

The U.S. Military has now opened its doors to undocumented young immigrants. The new policy which was announced last September 25 by the Defense Department will be implemented under an existing program known as Military Accessions Vital to National Interest or MAVNI. It will allow those who were granted deferred action under President Obama’s Deferred Action for Childhood Arrivals (DACA) program to enlist.

Approximately 5,000 non-citizens, most of whom are permanent residents, are recruited in the military each year. The MAVNI program allows the recruitment of immigrants with skills that are considered critical to the national interest. The program is currently open to individuals with certain temporary visas with advanced medical skills, or who can speak certain languages.

The number of recruits per year under the program is limited to 1,500. Because of the limited scope of the program, it is uncertain how many of the estimated 580,000 DREAMers will qualify.

The lure of the program, despite the obvious risks of being in the Army, is the expedited route to naturalization that it offers. Over 92,000 foreign-born service members have become U.S. citizens since 2001.

The U.S. military has a history of recruiting non-citizens for service during a time of national need. Filipinos were recruited into the Navy after the signing of the Military Bases Agreement in 1947, which allowed the U.S. to have military bases in the Philippines. Over 35,000 Filipinos joined the Navy between 1952 and 1991.

Ordinarily, immigrants on temporary visas wait many years to become permanent residents and usually an extra five years to become naturalized citizens. Service members under this program can become U.S. citizens in as short as 10 weeks.

The MAVNI program was created to fill medical specialties in the military in which it has a shortfall, which include dentists, surgeons and psychology professionals. Health care professionals must meet all qualification criteria for the medical specialty, demonstrate proficiency in English, and commit to at least 3 years of active duty or 6 years in the Selected Reserve.

It has sought to recruit native speakers of any of 44 languages with cultural backgrounds. Tagalog and Cebuano are included. Applicants under this category must demonstrate language proficiency, meet all existing enlistment eligibility criteria and enlist for at least 4 years of active duty.

“We’re just not sure how many within that existing population of DACA would have the linguistic skills to qualify,” says a defense official. “These are kids who entered the country at a fairly young age and have basically grown up in the United States, so the limit of their language talents would probably be the language that they received at home.”

Before the announcement of the new policy thousands of undocumented young immigrants who were granted DACA status were clamoring to enlist in the military but were not eligible under this program. Many believe that allowing them to enlist would help fill recruitment shortages.

Although the change in policy is narrow and limited, it is the hope of immigrant advocates that the Obama administration would soon allow a greater number of undocumented immigrants to serve in the military.

Scroll To Top