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Lawsuit Filed To Strike Down Revised Visa Bulletin

The release of the revised October 2015 Visa Bulletin on September 25, 2015 has incensed and infuriated thousands of immigrants expecting to benefit from the original October Visa Bulletin issued on September 9, 2015. The changes in the revised Visa Bulletin effectively excluded them from the immigration relief they stood to benefit under the original October Visa Bulletin.

In the original October Visa Bulletin, the Department of State (DOS) listed, for the first time, two important dates: the “filing date” and the “final action date.” By listing a “filing date,” beneficiaries of employment-based and family-based preference petitions could apply for adjustment of status even before their priority dates would become current.

Adjudication of their green card applications, however, would not be made until the “final action date.” Adjustment applicants, in the meantime, would obtain benefits such as employment authorization and advance parole. The much-awaited change was part of the President’s efforts to modernize the immigration system.

Four business days before the United States Citizenship and Immigration Services (USCIS) was supposed to start to accept adjustment applications under the new procedure, a revised Visa Bulletin was released which moved the “filing dates” back. In doing so, thousands of immigrants would no longer be eligible to file for adjustment of status on October 1.

On September 28, 2015, a Class Action suit was filed before the U.S. District Court for the Western District of Washington seeking, among others, to strike down the revised October Visa Bulletin and compelling the USCIS to accept adjustment applications pursuant to the original October Visa Bulletin.

The suit was brought against the U.S. Department of State, Secretary of State John Kerry, Department of Homeland Security (DHS), Secretary of Homeland Security Jeh Johnson, the United States Citizenship Immigration Services (USCIS) and USCIS Director Leon Rodriguez.

It alleged that the revision constitutes an “arbitrary and capricious agency action contrary to law, as well as an abuse of the agency’s discretion, and violates Plaintiff’s due-process rights and the Administrative Procedure Act (“APA”)”.”

The Complaint was brought by fifteen individuals and the thousands of class members they seek to represent who are beneficiaries of approved employment-based petitions for highly skilled workers.

The revised October Visa Bulletin excluded EB2 China applicants with priority dates between the original Bulletin’s filing date of May 1, 2014 and the revised filing date of January 1, 2013. It also excluded EB2 India applicants with priority dates between the original filing date of July 1, 2011 and the revised filing date of July 1, 2009, and EB3 Philippine applicants with priority dates between the original filing date of January 1, 2015 and the revised filing date of January 1, 2010.

According to the Complaint, Plaintiffs and thousands of others, reasonably relying on the original October Visa Bulletin, started preparing their adjustment of status applications. They took time off work to obtain the required documents for their applications, and arranged for the provision and translation of their documents from their home countries.

They paid attorneys to prepare their applications. They went to see USCIS-approved civil surgeons and paid for the required medical exam and vaccinations. With only 22 days from the date the October Visa Bulletin was released to the date the USCIS would start accepting applications on October 1, they rushed to complete all the requirements expecting to submit their applications on that day.

With the abrupt changes in the revised October Visa Bulletin, they would not be able to submit their applications as promised in the original October Visa Bulletin and they are now left without recourse.

Plaintiffs reasonably relied on the original October Visa Bulletin which was confirmed by the USCIS as announced in its website. Plaintiffs also alleged that there was no reasoned explanation whatsoever for the DOS’s radical recalculation. The DOS merely stated that after consulting with the Department of Homeland Security, it has decided that it is going to change the filing dates.

Plaintiffs pointed out in the Complaint that this is not the first time that this has happened. In the year 2007, the DOS also reissued a visa bulletin which affected thousands of green card applicants. The government, however, took it back after immense pressure from the public. They are expecting the same outcome with the revised October Visa Bulletin.

Parents’ Divorce Does Not Bar Step-parent Petition

A U.S. citizen may file an immigrant petition with the United States Citizenship and Immigration Services (USCIS) for his alien parents to immigrate to the U.S. Parents, just like the spouse and the unmarried children under 21 of a U.S. citizen, are considered immediate relatives and need not wait for an immigrant visa number to become available once the I-130 petition is approved.

In order to petition a parent under the immediate relative category, the U.S. citizen petitioner must be at least 21 years old.

The I-130 petition must be supported by proof of the sponsor’s relationship to the beneficiary. For a legitimate child sponsoring his alien parents for a green card, he must submit his birth certificate showing his name and his parents name.

A child who was born out of wedlock may petition his natural father if the father has or had a bona fide parent-child relationship before the illegitimate child turned 21.

There is a bona fide parent-child relationship, “where the father demonstrates or has demonstrated active concern for the child’s support, instruction and general welfare.”

A bona fide relationship may be shown by proof of emotional ties such as regular communication through letters; attendance of major events in the life of the child like birthdays, graduations; notarized affidavits of friends, neighbors, school officials and other knowledgeable persons who would attest to the existence of a parent-child relationship between the petitioner and the beneficiary.

The US citizen child may also sponsor his step-parent for a green card. To benefit from the status as step-parent, the U.S. citizen petitioner must not have reached 18 years of age at the time of the marriage creating the stepchild relationship.

To benefit from the stepchild relationship, 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 petitioner’s birth parent divorced his step-parent, will this mean that the petition for the step-parent will be denied?

In a recent case, the Board of Immigration Appeals (BIA) set aside the decision of the Field Office Director of the USCIS denying the visa petition filed on behalf of the petitioner’s step-father.

In that case, the petitioner’s mother and stepfather divorced. Since the marriage between the petitioner’s mother and stepfather ended, she had to establish that her relationship with her stepfather continued even after the divorce.

The USCIS Director, however, noted that most of the evidence submitted by the petitioner related to their relationship before the divorce. The Director requested additional evidence demonstrating that her stepfather supported her financially such as money order receipts, canceled checks tax records, school records, among others.

Petitioner submitted statements, photographs, affidavits and greetings which the Director determined as insufficient to meet the burden of proof.

The Petitioner argued on appeal that in cases involving an adult child required evidence should generally come in the form of cards, letter, and family photos.

The BIA pointed out that the Director’s reason for denial was not specifically addressed in the request for evidence. In order to give the petitioner the opportunity to respond to the reason for the denial, the BIA remanded the case to the USCIS to allow the petitioner to submit additional evidence. Such evidence did not have to prove active parenting and continuing financial support but must show that the “parent-child relationship more probably than not continued since the parents’ relationship was terminated.”

Adjustment of Status May Be Filed Before Priority Date Is Current

As part of the Obama administration’s efforts in modernizing our immigration system, the Department of State (DOS) has changed the procedure in determining visa availability for both the employment-based and family-based preference petitions.

In its October 2015 visa bulletin, the DOS listed two important dates: the “filing date” and the “final action date.”

The “filing date” is the date when beneficiaries will be allowed to start their immigrant visa application process or file for adjustment of status. Although their green card applications will not be adjudicated until the “final action date” listed, adjustment applicants will, in the meantime, be able to get benefits such as employment authorization and advance parole.

Before this change, the Department of State only listed the cut-off date for family-based and employment-based preference categories in the monthly visa bulletin. The cut-off date is the priority date of the first visa applicant who could not be reached within the limit. If an applicant’s priority date is before the cut-off date listed, 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 new rule allows for early filing for adjustment of status so long as the beneficiary’s priority date is earlier than the “filing date” listed in the visa bulletin.

To illustrate, Philippine nationals with a priority date earlier than January 1, 2015 under the third employment-based third preference category (EB-3) may file for adjustment of status beginning October 1, 2015. The new rule shortens their wait period since the Philippine EB-3 cut-off date listed in the October visa bulletin is January 1, 2007.

The cut-off date listed for each preference category is the same as the “final action date” or the date when a decision on their green card application may actually be issued.

The October visa bulletin also shows that the new rule advances eligibility for adjustment of status of India’s EB-3 beneficiaries by 6 six years with the “filing date” of July 1, 2011 and “final action date” of May 1, 2005. Meanwhile, China’s EB-2 “filing date” of May 1, 2014 is two years in advance of its January 1, 2012 “final action date”.

Also worth noting under the family-based preference categories is the Philippine F-1 category (brothers or sisters of U.S. citizens) which has a “filing date” of four years ahead of its “final action date.”

The new rule will provide qualified beneficiaries of employment-based petitions “greater flexibility” and “job mobility” to allow them to maintain status while they are waiting for a visa number. It will also allow the beneficiaries and their dependents to obtain work permits and advance parole. The new rule will also protect their dependent children from aging out under the Child Status Protection Act (CSPA).

To be eligible to adjust status, the applicant must be lawfully present in the United States or must be covered by Section 245(i) of the Immigration and Nationality Act.

For visa applicants who are outside the U.S., the National Visa Center (NVC) will notify them to start their visa application process. However, final decisions on their visa applications will not be issued until their priority dates are current.

When Retroactive Adoption Is Valid for Immigration Purposes

There are several ways to bring an adopted child to the U.S.

If the child habitually resides in a country outside of the U.S. that is a party to the Hague Convention which took effect in the U.S. on April 1, 2008, the Hague process must be followed. There are currently 92 countries, including the Philippines that are parties to the Convention. Forms I-800A and I-800 are used in order to adopt.

The orphan (non-Hague) process applies to adoptions in non-Hague countries. The process requires the filing of Forms I-600 and/or I-600A.

Another process is the family-based petition route. An adopted child would be considered a “child” for immigration purposes if the adoption took place before the child turned 16 and the adopting parent had legal and physical custody of the child for at least two years. The adopting parent may file an immigrant visa petition (Form I-130) for the child to bring him or her to the U.S.

What if the adoption decree was entered after the child’s sixteenth birthday but made retroactive to a date before the child turned 16? Is it valid for immigration purposes?

In a recent case, the beneficiary was born in China and entered the U.S. as a nonimmigrant visitor when she was nearly 14 years old. The beneficiary’s paternal aunt filed a petition to adopt the beneficiary in Hawaii two months before the beneficiary’s 16th birthday.

The State court judge issued the adoption decree after the beneficiary’s 16th birthday but the effective date of the decree was made retroactive to the date the petition was filed or two months before the beneficiary’s 16th birthday.

When the petitioner naturalized, she filed an immediate relative visa petition for the beneficiary as her adopted child. Although the petition was initially approved, the District Director revoked it, finding that the adoption did not occur before the child turned 16.

The rule established by the Board of Immigration Appeals (BIA) in two previous cases was that a retroactive adoption decree was not valid for immigration purposes.

In the first case, the beneficiary was already 18 years old when the adoption was initiated and the adoption decree was made retroactive to date 12 years prior. The BIA ruled that the adoption was invalid for immigration purposes.

The BIA came to the same conclusion in a subsequent case where it also did not recognize as valid for immigration purposes an adoption decree as being effective as of the date it was entered nunc pro tunc or with “retroactive legal effect.”

The age restriction, according to the BIA, was put in place by Congress to prevent abuses and deter adoptions entered into for the purpose of circumventing immigration laws. The previous rule that the BIA established in the prior cases, however, was too rigid and did not consider the interests of family unity.

The BIA found the need to balance the interest of Congress to foster family unification and established a new rule, finding that as long as the adoption was initiated before the child’s sixteenth birthday and the State which entered the adoption decree expressly permitted the decree to be dated retroactively, the adoption may be recognized for immigration purposes.

False Claim to Citizenship Bars Adjustment of Status

Non-citizens must remember not to make any false U.S. citizenship claims for any purpose, whether to obtain a visa, enter the United States, find employment, apply for public benefits, to register for or vote in an election. A false U.S. citizenship claim carries with it serious consequences.

False representations of U.S. citizenship made in order to obtain any benefit under the Immigration and Nationality Act (INA) or any other Federal or State law would make the person open to deportation and a lifetime bar from returning to the United States.

The false claim issue arises most commonly when an alien fills out the I-9 (Employment Eligibility Verification) to gain employment, thereby attesting under penalty of perjury that he is a U.S. citizen.

In the Eighth Circuit case of Etenyi v. Holder, the alien was an applicant for adjustment of status on the basis of a petition filed by his U.S. citizen spouse. The USCIS denied his application stating that he could not be adjusted because he had falsely claimed on Form I-9 that he was a U.S. citizen when he applied for a job.

He was later placed in removal proceedings and was found removable by the immigration judge. He later appealed to the Board of Immigration Appeals (BIA), but the Board dismissed his appeal.

He argued before the Court of Appeals that the Form I-9 had been pre-populated and he did not notice the checked box asserting, under penalty of perjury, that he was a “citizen of the United States.” The Court, however, afforded deference to the immigration judge’s finding, rejecting his claim that he “failed to read the entire form and failed to note the box was checked.”

His testimony that he reviewed the other information on the form before signing it and the fact that he had a college-level education from an American university at the time he completed the form, led the immigration judge to reject his claim. The immigration judge’s finding, according to the Court, was supported by evidence.

The Court also rejected his argument that the DHS should present more than the Form I-9 to satisfy its burden of proof. The common defense that centered on the ambiguous nature of the attestation in the old version of the Form I-9 as to whether the alien represented himself to be a U.S. citizen or national is not applicable in this case since he signed the new version of the Form I-9.

The new Form I-9 separates the choices of U.S. citizen and non-citizen U.S. national. The Court ruled that no additional evidence was required.

In another case decided by the Court of Appeals for the Fourth Circuit, the alien used the identities of two American citizens to apply for jobs indicating on the Form I-9 that he was a U.S. citizen.

He argued before the Court that seeking private employment is not an immigration benefit within the meaning of the false claim bar. He also argued, among others, that the use of other identities did not constitute direct claims of citizenship.

The Court rejected his argument stating that Form I-9 was created for the purpose of verifying a prospective employee’s eligibility for employment and is aimed at preventing the employment of unauthorized aliens. Private employment is therefore considered a “benefit” under the INA.

As to his use of the identity of others in the Form I-9, the Court ruled that he was the one seeking employment and that it was him who attested in the Form I-90 that he was a U.S. citizen. The alien, in this case, was not allowed to adjust to permanent resident status.

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