Seguritan US Immigration Articles

Philippines 3rd Leading Country of Origin of New Citizens

The Office of Immigration Statistics recently released information on the foreign nationals aged 18 years and older who naturalized in 2014.

The number of naturalizations decreased to 653,416 from 779,929 in 2013 and 757,434 in 2012. The Philippines remained as the third leading country of birth of the new citizens (34,591). Mexico with 94,889 was first followed by India with 37,854 and People’s Republic of China was 4th with 30,284.

Asia was the top regional origin (35.7%) followed by North America (34.1%) and Europe (10.9%). Asia has been the top region in most recent years since 1976.

74% of all persons naturalizing resided in the following states: California, Florida, New York, Texas, New Jersey, Illinois, Massachusetts, Virginia, Georgia and Pennsylvania. California had 140,234 followed by Florida (79,637) and New York (77,717).

Naturalization is the process of becoming a US citizen after fulfilling the requirements set forth in the Immigration and Nationality Act (INA). A naturalized US citizen may vote, get a position in federal government, participate in federal programs, and obtain a US passport and bring family members to immigrate to the United States.

To be eligible for naturalization, one must be at least 18 years old, be a lawful permanent resident (green card holder), maintain continuous residence in the United States for at least five years, and be physically present in the US for at least 30 months before filing a Form N-400 Application for Naturalization.

Trips of one year or longer break the continuous residence requirement and the applicant must complete a new period of residence after coming back to the US. On the other hand, trips of more than six months to less than one year are presumed to break the continuity of residence, but this presumption can be rebutted with evidence that the applicant did not abandon permanent residence in the US. This evidence may include the filing of US tax returns, presence of family ties in the US and maintaining a home in the US.

The applicant must also present proof of residence for at least three months in the state where the application for naturalization is filed.

Additional requirements include the ability to speak, read and write in English; knowledge of US government and; and possession of good moral character. This is measured by “standard of the community” and evaluations are made on a case-to-case basis. Certain activities may disqualify a person from complying with this requirement such as involvement in crimes of moral turpitude (like gambling, habitual drunkenness or prostitution) violation of drug laws, willful failure to support dependents and crimes involving fraud, harm to persons or damage to property. Crimes involving murder or other aggravated felonies will ultimately disqualify one from being naturalized.

Special provisions in the INA exempt certain applicants from some of these general requirements. For instance, spouses and children of US citizen only require three years of continuous residence instead of five. If you have any physical impairment, you can also be exempted from the civics and English exams. Likewise, you can be exempted from the English test if you are at least 50 years old and have resided in the US as a permanent resident for a period totaling at least 20 years or if you are 55 years old and have resided for at least 15 years.

H-1B Processing After Cap is Reached

The US Citizenship and Immigration Services (USCIS) recently announced that the H-1B cap for fiscal year 2017 has been reached. Over 236,000 petitions were received during the filing period that ended on April 7.

It conducted a computer-generated random process or lottery on April 9 to select the petitions that met the 65,000 cap for the general category and 20,000 for the advanced degree exemptions.

The lottery for the advanced degree came first and those not selected became part of the random process for the 65,000 limit. All rejected petitions will be returned along with their filing fees.

The USCIS will continue to accept and process petitions that are filed to extend an H-1B status, to change the terms of employment of an existing foreign worker with the same US employer, to transfer an H-1B worker to another US employer and to allow current H-1B workers to work concurrently in a second H-1B position.

It will also accept cap exempt H-1B petitions such as those filed for alien workers who will work at an institution of higher education or a related or affiliated nonprofit entity, nonprofit research organization, or a governmental research organization. Third party petitioners that are not qualifying entities may claim cap exemption if the beneficiary will work at a qualifying institution.

J-1 physicians who have obtained a Conrad 30 waiver are also cap exempt.

Meanwhile, the American Immigration Lawyers Association (AILA) has expressed concern over the huge disparity between the demand for alien skilled workers and the mandated cap that Congress has provided. AILA President Victor Pradis Nieblas said that “artificial limits established more than a generation ago are again hobbling the economic potential of this great nation.”

Nieblas further said “Why do we continue to artificially limit this program? In a reasonable system, market demand should factor into how many business visas are granted, and indeed, demand for H-1B visas slowed when the economy took a downturn. But each year that we cap these visas when demand outweighs supply, all we’re doing is creating obstacles to economic growth. We’re losing out on shared prosperity for no good reason.

“The United States is one of the most important economies in the world, but its full potential is going unrealized. We live in a wireless world, but our visa system is a relic from the days of dial-up modem. It’s long past time for Congress to lead on this issue and reform the H-1B program in a way that addresses the needs of American businesses, US workers and our economy. Congress must bring our immigration system out of the last century and into this one.”

The H-1B petition is used by most US companies to hire skilled alien workers to fill up skill gaps in the local labor supply.

Immigration Options for Crewmen

Sometimes ship crewmembers ‘jump ship’ while their vessel is in the US in the hope that they can obtain their green card and build a better life.

Unfortunately, they would soon realize that as a rule, they are not eligible to adjust status even if they are married to a US citizen.

What then are their options?

If the crewman is the beneficiary of a petition or labor certification filed on or before April 30, 2001 and was in the US on December 21, 2000 if the petition was filed after January 14, 1998, he is covered by the 245(i) exception to the adjustment bar. However, if he does not fall under this exception, he has to go abroad and obtain an immigrant visa.

This would mean years of separation from his family if he has accrued unlawful presence in the US for more than 180 days. But a recent regulation now allows certain individuals, including crewmembers, to shorten the separation by obtaining a provisional waiver before he departs for his immigration interview abroad.

We have recently represented a crewmember who successfully obtained a provisional waiver. Our client was in the Philippines only for a few weeks and is now a lawful permanent resident in the US.

Another option is for the crewmember to check with an attorney if he is a crewman to begin with.

Under the Immigration and Nationality Act, an alien crewman is a person serving in a capacity required for the normal operation and service on board a vessel or aircraft, who intends to land temporarily and solely in the pursuit of his calling as a crewman.

The proper visa classification for crewmen is the D visa. However, the C-1 visa is also given to crewmen who will be in immediate and continuous transit through the U.S. to join a ship or aircraft in the U.S. Consular officials often issue a dual transit/crewmember visa called “C-1/D”.

Confusion sometimes arises because, since the C-1 visa is generally for those who are passing through the U.S. to another country, not all transit visa holders are crewmembers but they are issued a C-1/D visa.

The confusion continues upon inspection for admission or parole in the U.S., where the individual may be issued an I-94 with a C-1 or D stamp, or an I-95 (crewman’s landing permit).

In other words, not everyone with a C-1 or a C-1/D visa is a crewman and ineligible to adjust status. If the person does not meet the statutory definition of a crewman, he/she should not be considered ineligible for adjustment of status. Under the law, it is one’s occupation and purpose of entry that makes him a crewman and not the manner of his arrival.

Given the serious immigration implications of being categorized as a crewman, it is important to look beyond what may be stamped on the face of one’s immigration papers and analyze many factors, including his occupational history, purpose in coming to the United States, circumstances surrounding his inspection upon admission to the U.S., and actions after his entry.

H-4 Employment Authorization Guideline

A question and answer guideline concerning the employment authorization for certain H-4 dependent spouses was recently released by the USCIS. It provides information on eligibility, the application process, adjudication and processing times.

The H-4 employment authorization rule took effect on May 20, 2015. Many have already applied for the benefit but further clarification of the process was needed.

Under the rule, eligible are the spouses of H-1B nonimmigrants who are the beneficiaries of an approved I-140 immigrant petition or who have been granted extension beyond six years under the AC21 law.

The I-140 need not have been filed by the current H-1B employer or by the employer who had filed the H-1B petition.

The I-140 must not have been revoked. Both the spouse and the dependent must be maintaining their nonimmigrant status.

The authorization is unrestricted. This means that you as a dependent spouse may work anywhere or engage in self-employment or start a business.

If you file you must submit a paper I-765 application, not an electronic form, and submit supporting documents. Supporting documents include evidence of H-4 nonimmigrant status, evidence of your relationship with your H-1B spouse such as your marriage certificate and documents proving his/her H-1B status. This could be a copy of Form I-797, Notice of Approval for the Form I-129 filed on your spouse’s behalf. This could also be a copy of your H-1B spouse’s Form I-94, personal data page in his/her passport, visas on which he or she last entered the US and the latest US admission stamped in his/her passport.

If your spouse’s H-1B status is based on the AC21 law, you must include evidence that your H-1B spouse is the beneficiary of a Permanent Labor Certification Application filed at least 365 days before the expiration of his/her six-year stay. This could be a copy of a printout from the Department of Labor (DOL) showing the status of the Permanent Labor Certification Application filed on his/her behalf.

You may also submit proof that your H-1B spouse’s Form I-140 was filed at least 365 days before the expiration of his/her six-year stay as an H-1B. An example would be to include a copy of your H-1B spouse’s Form-I-797 Receipt Notice for the Form I-140.

If you are applying based on your spouse being a beneficiary of an approved Form I-140, submit a copy of the approval notice of his Form I-140 or if unavailable, anything that could explain why it is unavailable.

If you are unable to obtain the abovementioned documentation for whatever reason, sworn affidavits by non-parties who have direct knowledge of the relevant events and circumstances may likewise be submitted as substitute evidence.

While the I-765 is pending, you may travel if you are currently in status and meet all other admission requirements. If the I-765 is filed concurrently with your I-539 change of status to H-4, travel will be treated as abandonment of application.

Processing time is about 90 days. The employment authorization card cannot be used to enter and exit the US.

Problematic Relative Petitions

A US citizen or a lawful permanent resident (LPR) petitioner may encounter a number of issues when filing for his/her spouse. Commonly encountered are issues relating to the petitioner’s previously filed petitions, huge gap in the age of petitioner and beneficiary, their cultural differences, language barriers and other USCIS-identified marriage fraud indicators.

The USCIS looks into previously-filed petitions when adjudicating a petition currently pending before it. There is no prohibition on filing multiple petitions; however, an LPR who obtained his residence through prior marriage cannot file a petition for a spouse within 5 years of the date when he became an LPR. To overcome this prohibition, the LPR must establish by clear and convincing evidence that the prior marriage was entered into in good faith or it ended through death.

Marriage entered into solely for immigration benefits is considered fraudulent and are not recognized for immigration purposes. The USCIS looks at a number of factors indicating sham marriage or where the couple lacks the intent of establishing a life together at the time of the marriage.

The following factors could be interpreted as indicating sham marriage: huge gap in the age of petitioner and beneficiary, their inability to speak each other’s language, vast difference in cultural and ethnic background, family and/or friends are unaware of the marriage, the marriage is arranged by a third party, discrepancies in the statements on questions for which a husband and wife should have common knowledge, no cohabitation since marriage, and petitioner has previously filed petitions on behalf of prior alien spouses.

Where there is a large disparity of age between the petitioner and the intending immigrant, the USCIS will scrutinize the relationship more thoroughly to determine whether they married in good faith. It is easier for couples who have been married for many years to provide documentation proving that they have a bona fide marriage.

Evidence of good faith marriage include proof of combined financial resources, shared residence, proof that beneficiary is listed as petitioner’s spouse in insurance policies, tax forms, bank accounts and other evidence such as photographs.

The petitioner must prove by a preponderance of evidence that the marriage is bona fide. For recently married couples who cannot provide proof of shared residence as the beneficiary is still living abroad, it is best that they document their correspondence and collect as many documentary evidence of the time spent together.

Another fraud indicator is where the petitioner and intending immigrant speak different languages. In this case, the USCIS will investigate as to how the spouses are communicating with each other and whether they are trying to learn each other’s language. As to vast difference in religious and cultural beliefs, the USCIS will most likely look into how the couple will celebrate the holidays and how they will practice their religious beliefs.

Where fraud indicators are present, the USCIS will review and examine the relationship with more scrutiny, and may conduct investigations and field examinations.

Scroll To Top