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Fiancé(e) Visa for Same-Sex Couples

Since the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) in U.S. v. Windsor in June 2013, immigration benefits available to heterosexual couples are also now available to same-sex couples, including obtaining a K-1 nonimmigrant visa for a foreign fiancé(e).

The K-1 visa, also known as fiancé(e) visa, allows a U.S. citizen to bring a foreign national fiancé(e) into the United States.

Almost six months after the Windsor ruling, the U.S. Embassy in the Philippines granted to Noel “Aeinghel” Amaro and Robert Cotterman, its very first fiancé visa issued to a same-sex couple. Robert Cotterman is a member of the U.S. military. They also issued a visa to another couple, Maria Cecilia Limson Gahuman and Maria Carla Antonio, a U.S. citizen.

The K-1 fiancé(e) visa process starts with the filing of a petition made on Form-129F with the United States Citizenship and Immigration Services (USCIS). Before the USCIS approves the K-1 petition, the petitioner and the beneficiary must satisfy certain requirements.

First, the parties have to prove that they have previously met in person within two years prior to filing the petition, unless a waiver is granted. Secondly, they must prove that they have a good faith intention to marry each other. Lastly, they have to prove that they are free to enter into a valid marriage in the U.S. within 90 days from the fiancé(e)’s arrival.

The parties must marry during the 90-day period. If not, the beneficiary will have to return back to his/her home country. No extension of stay is permitted. If they get married during that time frame, the beneficiary can then apply for permanent residency here in the U.S. and will be given the two-year conditional status.

If the K-1 beneficiary has children, the minor unmarried children may also enter the U.S. on a K-2 visa and apply for permanent residence just like the fiancé(e) parent. They should be included in the I-129 form as accompanying or following to join the beneficiary.

Under the International Marriage Broker Regulation Act (IMBRA), K-1 petitioners must disclose information about any criminal convictions for specified crimes such as domestic violence, child abuse, stalking and sexual assault. They are also required to inform the USCIS of the involvement of any international marriage broker.

Approved K-1 petitions are forwarded to the National Visa Center (NVC). The NVC will then forward the cases to U.S. embassies abroad and will notify applicants by mail when it does. The NVC reports that from July to September 2014, it received around 2,600 fiancé(e) visa cases every month.

The beneficiary will need to pay the visa fee before scheduling an appointment for visa interview. The beneficiary must bring following documents during the interview: DS-160 confirmation page, valid passport, birth certificate, evidence of termination of prior marriages, certificate of no marriage record, if applicable, police clearance or certificate, medical examination record and financial records to show that he/she will not become a public charge, among others.

In instances where the beneficiary comes from a country where same-sex relationships are banned or declared unlawful or where public knowledge of the relationship could put the beneficiary in danger or at risk of physical harm, the beneficiary or his/her attorney may request the NVC to forward the case to a U.S. consulate in another country other than where the beneficiary is residing.

According to Secretary of State John Kerry, “The State Department, which has always been at the forefront of equality in the federal government… is tearing down an unjust and unfair barrier that for too long stood in the way of same-sex families being able to travel as a family to the United States.”

At present, same-sex couples can marry in 36 states, namely, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Indiana, Illinois, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Jersey, New Hampshire, New Mexico, North Carolina, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming. They can also marry in Washington, D.C.

Although a federal court in Alabama struck down as unconstitutional the state’s ban on gay marriage, the Alabama Supreme Court on March 3, 2015 ordered the probate judges to stop issuing marriage licenses to same-sex couples. The case will ultimately be decided by the U.S. Supreme Court. Oral arguments on the constitutionality of same-sex marriage bans in Ohio, Michigan, Kentucky and Tennessee are also scheduled to be heard before the U.S. Supreme Court next month.

H-2B Adjudication Resumes

As of March 17, 2015, the United States and Immigration Services (USCIS) announced that it has resumed adjudication of H-2B petitions for temporary non-agricultural workers.

The USCIS suspended processing of H-2B petitions on March 5, 2015, a day after the Department of Labor (DOL) ceased processing prevailing wage determinations and applications for labor certification required under the H-2B program pursuant to an order of a federal district court in Florida.

The federal court vacated the DOL’s 2008 H-2B regulations, ruling that under the Immigration and Nationality Act (INA) the DOL does not have authority to issue regulations in the H-2B program.

The DOL filed an unopposed motion to stay the court’s order on March 16, 2015 stating that the USCIS will resume the processing of H-2B petitions based on temporary labor certifications issued by the DOL. The USCIS, however, announced that premium processing of H-2B petitions remains suspended until further notice.

The H-2B program allows U.S. employers to hire foreign non-agricultural workers to perform temporary services on a one-time, seasonal, peak load or intermittent basis. These workers are usually needed in the construction, health care, lumber, manufacturing, food service/ processing and resort/ hotel industries.

Each year the USCIS allocates 66,000 visas for the H-2B program, with 33,000 allocated for the first half of the fiscal year and 33,000 for the second half.

The first half of the fiscal year is between October 1 and March 31 while the second half of the fiscal year is between April 1 and September 1.

The USCIS has announced that the H-2B cap for the first half of fiscal year 2015 was reached on January 26, 2015. As of February 27, 2015, the USCIS received a total of 16,519 H-2B petitions for the second half of the fiscal year and 14,740 beneficiaries have been approved while 1,779 were pending.

The H-2B process starts with the filing of a temporary labor certification for H-2B employment with the U.S. Department of Labor. When the labor certification is issued, it must be attached to the H-2B petition on Form I-129 by the petitioner and filed with the USCIS.

The petitioner of an H-2B petition may be a U.S. employer or U.S. agent. However, the petitioner must show that the need is only temporary in nature. He must demonstrate that the work will terminate after a definite period of time.

Multiple beneficiaries may be included in a single H-2B petition if they will all be performing the same work for the same period in the same location.

The beneficiary of an H-2B petition may be in the United State or overseas. The H-2B petition can be filed with an unnamed beneficiary if the beneficiary is overseas and will be applying for the visa at a U.S. consular office abroad. However, if the name of the beneficiary is required to establish eligibility or that the beneficiary is not from a participating country, the beneficiary must be named in the petition.

When approved, the validity of the H-2B visa will reflect the period indicated in the labor certification. This should reflect the period of the employer’s need. Generally, the period granted is limited to one year which may be extended for another year up to a maximum of three years.

The Philippines as well as 67 other countries have been identified by the USCIS as participating countries under the H-2B program in a list released in January 2015. Five of these countries, namely, the Czech Republic, Denmark, Madagascar, Portugal, and Sweden, are new additions to the list.

An H-2B petition may be approved for a beneficiary who is not from any of the participating countries only if the Secretary of Homeland Security finds that it is in the interest of the U.S. to approve the petition.

Work Permit for Certain H-1B Spouses Available in May

On May 26, 2015, the United States Citizenship and Immigration Services (USCIS) will begin accepting applications for employment authorization of certain H-4 dependent spouses.

The Department of Homeland Security (DHS) issued the final rule on February 24, 2015. According to the DHS, this is an important element of President Obama’s executive actions on immigration announced on November 20, 2014.

The H-1B program is one way that U.S. employers are able to hire high skilled workers in specialty occupations such as teachers, engineers, accountants, computer programmers, architects, therapists, among others. It has been frequently used by U.S. businesses to employ high-skilled foreign workers with degrees in science, technology, engineering and mathematics. The job requires as a minimum a bachelor’s degree or equivalent.

An H-4 dependent visa is available for the spouse and unmarried children under 21 of the foreign worker on H-1B status. The new regulation will provide work permits for H-4 dependent spouses of H-1B visa holders who are in the process of obtaining green cards through employment.

According to USCIS Director Leon Rodriguez, “Allowing the spouses of these visa holders to legally work in the United States makes perfect sense. It helps the U.S. businesses keep their high skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent resident. It also provides more economic stability and better quality of life for the affected families.”

To qualify for the benefit, the H-4 dependent spouse must show that his/her H-1B nonimmigrant spouse is either the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker or has been granted an H-1B extension under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), as amended.

A foreign worker is allowed a maximum period of 6 years on H-1B status. Under AC21, an H-1B worker may file for an extension of their H-1B status beyond 6 years if he/she 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.

A post-sixth year extension is available to H-1B workers under AC21 if a labor certification application or employment-based immigrant visa petition was filed on their behalf 365 days or more before the expiration of the six-year H-1B period, and the application or petition remains pending. The labor certification application or I-140 petition must have been filed by the end of the worker’s fifth year in H-1B status.

Family members on H-4 dependent status are also eligible for the same period of extension granted to the principal H-1B beneficiary.

H-4 dependent spouses who are eligible for the work permit under this new rule must sign and submit Form I-765, Application for Employment Authorization. The completed form must be submitted with documentary evidence demonstrating their eligibility for the benefit along with the $380 filing fee. The check must be made payable to the U.S. Department of Homeland Security.

The USCIS, however, stressed that applications will not be accepted before the effective date of the new regulation on May 26, 2015.

Once approved, 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.

For the first year, the USCIS estimates around 179,600 applicants for work permit under this rule and 55,000 annually in the succeeding years.

EB-3 Cut-Off Dates Continue to Advance

The March 2015 Visa Bulletin shows that the worldwide employment-based third preference (EB-3) cut-off date including the Philippines has advanced by 5 months from January 1, 2014 in February to June 1, 2014. Meanwhile, China only advanced by a month and three weeks to October 22, 2011 and India by over a week to January 1, 2004.

The Philippine EB-3 cut-off date made a 7-year leap forward in the past 12 months. In March 2014, the cut-off date was May 1, 2007. The current cut-off date is only 9 months short from being current. Such rapid movement is likely to increase the demand for visa numbers and this may require corrective action. The demand for EB-3 visa numbers have been surprisingly low but it may soon increase as the cases filed by nurses are processed. Retrogression is a possibility in the coming months.

China’s employment-based second preference has advanced by five months to September 1, 2010 and India by one year and four months to January 1, 2007.

The employment-based second preference (EB-2) remains current for all other countries. All the other employment preferences remain current for all countries.

The family-based preferences (F-1 to F-4) move slowly. The worldwide preference cut-off dates are as follows: F-1 – August 1, 2007; F-2A – June 22, 2013; F-2B – July 8, 2008; F-3 – January 22, 2004 and F-4 – May 15, 2002.

The Philippines cut-off dates are: F-1 – February 1, 2005; F-2A – June 22, 2013; F-2B – March 22, 2004; F-3 – August 1, 1993 and F-4 – September 8. 1991. It should be noted that the F-1 preference for the Philippines continues to do better than the F-2B so that unlike in previous years I-130 beneficiaries need not opt-out and remain in F-2B after their parents naturalize.

Because of the annual numerical limitation of visa numbers, cut-off dates are established for oversubscribed categories. 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.

The family-based 1st preference category (F-1) refers to unmarried sons and daughters of U.S. citizens, while the F-2A preference refers to spouses and children (less than 21 years old) of permanent residents.

The F-2B preference category refers to unmarried sons and daughters (21 years or older) of lawful permanent residents. The F-3 preference refers to married sons and daughters of U.S. citizens. The F-4 preference pertains to brothers and sisters of adult U.S. citizens.

Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and are currently in the U.S., must file their adjustment application in order to get certain interim immigration benefits such as employment authorization and travel permit. Those with pending adjustment applications will be allowed to remain in the U.S. and work here until the adjudication of their adjustment applications.

Eligible to file for adjustment of status are those lawfully present in the United States or those who are beneficiaries under Section 245(i) of the Immigration and Nationality Act. To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification properly filed on or before April 30, 2001. If the visa petition or labor certification was filed after January 14, 1998, the alien must prove that he/she was in the U.S. on December 21, 2000.

Among the documents required to file for adjustment of status, in addition to Form I-485 and related forms, are the applicant’s photographs, medical examination report, affidavit of support, copy of passport and I-94, copy of birth certificate, and if applicable, copy of the applicant’s marriage certificate and official proof of termination of any prior marriage.

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