Seguritan US Immigration Articles

Pointers for Filing Petition to Remove Green Card Condition

Conditional permanent residents (CPRs) who gain their residency status through their marriage to a US citizen or lawful permanent resident (LPR) need to file Form I-751 (petition to remove the conditions on residence) within 90 days prior to the expiration of their status.

It is important that after the receipt of their green card, CPRs take note as to when it will expire because untimely filing of the I-751, especially without good cause, can have serious implications.

USCIS will usually inform the CPR through a notice at the start of that 90-day window. However, non-receipt of a notice cannot be considered an excuse because the USCIS is not required to give the CPR any prior notice.

If the CPR is still married to the US citizen spouse, they must file the I-751 jointly. They have to submit documents to show their bona fide marriage and continued marital union. The documents may include proof of common residence and shared responsibility, such as lease agreement naming both spouses as tenants, deeds and mortgages in both names; combined financial resources and joint responsibility for liabilities, such as joint checking and savings account statements, insurance policies showing the other spouse as beneficiary, joint federal and state tax returns and joint utility bills.

If the couple is divorced or if the marriage has been terminated due to the death of the US citizen spouse or LPR or the CPR was battered or subjected to extreme cruelty, then he/she must file a petition by himself/herself coupled with a request for a waiver of the joint filing requirement.

If the I-751 petition is not filed, the CPR will lose his or her legal status and may be subjected to removal proceedings. Once the green card has expired, it cannot be used for travel or employment purposes.

If the deadline has lapsed but the CPR wants to submit the I-751, he/she may file it late as long as it is filed with a written explanation as to what caused the delay. USCIS may approve the petition as long as it can show good cause like hospitalization, death of a family member, financial difficulties, being away on active military duty, among others. Corroborating evidence of the good cause should also be included.

If the USCIS determines that there is a good cause for the delay, then it will proceed to adjudicate the I-751. If it is not convinced, however, it will deny the petition for failing to comply with the requirements or issue a Request for Evidence (RFE). It can also refer the case to the local immigration service center for an interview.

In one case, a husband was delayed in filing his I-751 petition for five (5) years and was threatened with deportation. We represented him and despite the long delay and his long separation from his wife, we were able to have his permanent residence status reinstated.

Visa Parole for Families of Filipino Vets to Start June 8

Good news to the Filipino veterans of World War II! They don’t have to wait very long before being reunited with their loved ones as the US Citizenship and Immigration Services (USCIS) recently announced that it will grant parole to the beneficiaries of approved family-based immigrant visa petition and allow them to stay in the US while awaiting their immigrant visa numbers.

Due to the active lobbying of advocacy groups like the Asian Americans Advancing Justice (AAJC), the Filipino Veterans Equity Center and Filipinos for Justice, President Barack Obama announced the parole visa program last year but it was only this month that the USCIS released a policy guideline for its implementation.

This program called Filipino World War II Veterans Parole Policy (FWVP) will benefit approximately 2,000 to 6,000 Filipino-American World War II veterans who are living here in the US.

The said program was created in recognition of the significant contribution of the Filipino veterans during World War II. According to the policy announcement, more than 260,000 Filipino soldiers enlisted to fight for the US during the war. This is also an acknowledgment that these veterans and their surviving spouses are in need of the support and care that can only be given by their family members especially at their advanced age.

Those who may benefit from FWVP are individuals who are beneficiaries of approved I-130 Petition for Alien Relative, including any accompanying or following-to-join spouse and children who were approved on or before the start of the filing date of the parole request. The qualifying relationship with the veteran or petitioning relative must have existed on or before May 9, 2016 and the veteran or petitioning relative is residing in the US or in the case of deceased petitioners, was residing in the US at the time of death.

It is also important to establish the Filipino veteran’s World War II military service. The policy provides that the said military service must have been previously recognized by the US Department of Defense and must have been described in Section 405 of the Immigration Act of 1990 (IMMACT ’90).

The said act requires the veterans to fall within the following categories: (1) Those listed on the final roster prepared by the Personnel Division of the US Army as having served honorably in an active duty status with the Philippine Army during the war; (2) those listed on the final roster prepared by the Guerilla Affairs Division of the US Army as having served honorably in an active duty status within a recognized guerilla unit; (3) those who served honorably in an active duty within the Philippine Scouts or within any component of the US Armed Forces in the Far East (USAFFE) from September 1, 1939 to December 31, 1946.

When any proof of such military service is not included in the visa parole application, the USCIS will send a Request for Evidence (RFE).

As to who are eligible for visa parole depends on who the petitioner is. If the veteran is the petitioner himself, beneficiaries could be any one who falls in any family-sponsored preference category, except those considered as immediate relatives—spouse, parents and unmarried children under 21 years of age—because visa numbers are always readily available to them anyway. If the petitioner is the surviving spouse of the war veteran, beneficiaries could only be their children.

In cases where the petitioning relative dies before a visa number becomes available to his beneficiaries, eligible individuals may seek parole in their behalf in cases where USCIS has approved the reinstatement of an I-130 petition for humanitarian purposes.

Proposed H-2C Visa to Benefit Nurses and Less Skilled Workers

A bill to create a new visa program for temporary foreign workers has been introduced in the Senate by Senator Jeff Flake. Known as the Willing Workers and Willing Employees Act of 2016, the bill would create a 10-year guest worker pilot program.

The new visa would be called H-2C and it will allow employers to hire foreign workers with less than a bachelor’s degree to perform nonagricultural work in the US.

At present, there are several nonimmigrant visas available to temporary workers such as the H-1B visa for professionals and other highly skilled workers, the H-2A visa for temporary or seasonal agricultural workers and the H-2B visa for temporary or seasonal nonagricultural workers. But they do not address the need for year-round workers with less than a bachelor’s degree.

Foreign nurses and other health care workers will be eligible to apply for the H-2C visa. Registered nurses are generally not eligible to file for H-1B visa because nursing is not considered a specialty occupation under the H-1B program. A bachelor’s degree is not required to become a registered nurse.

The H-2C visa would be available only in counties or metropolitan statistical areas where the unemployment rate is 4.9 percent or less.

Employers will be registered with the Department of Homeland Security and they will have to attest that they had actively recruited workers but were unable to find a qualified US worker and that they have no labor dispute or layoffs.

There will be a flexible cap of 65,000 in the first year and 45,000 to 85,000 in the subsequent years depending on the economic demand. At least a quarter of the number of registered positions initially allocated for each 6 month-period shall be reserved for small business employers.

The H-2C visa would be granted initially for up to three years but could be renewed within the ten-year pilot period. The employees could be employed at any worksite and the employers could employ them at any worksite provided such location was advertised.

The law will require the Director of the Bureau of Census and other government agencies to conduct a study on the impacts of the H-2C program on home ownership rates, housing prices, access to quality health care, criminal justice system and employment and wage rates. Within three years from the enactment of the law, they will report to Congress on the findings of their study.

Senator Jeff Flake said that “this kind of flexible, market-based visa program designed to better meet economic demand is exactly the approach we need to bring US immigration policy into the 21st century”.

Several groups have applauded the introduction of this bill. The American Health Care Association said that it will help ease the nursing shortage by “making it easier for foreign nurses and other health care workers to get jobs at skilled nursing centers.”

Changing Jobs While Adjustment Application is Pending

The US Citizenship and Immigration Services (USCIS) has recently provided guidance on when an applicant for adjustment of status is allowed to port or change to a new employment. The new employment must be in the same or similar occupational classification as the original job.

The job flexibility provision was in the American Competitiveness in the 21st Century Act of 2000 (AC21) but it was not clear under the law or regulations what “same” or “similar” meant. The new guideline memo clarifies the procedure in determining eligibility for the job change.

To establish that both jobs are in a similar occupational classification, the applicant may submit proof about the Department of Labor (DOL) occupational classification codes assigned to the jobs; the duties for each job, the skills, experience, education, training, license or certification required for each job; the wages offered and any other relevant evidence. The change to another occupational classification may involve lateral movement, career progression or self-employment.

In determining whether the new job is the same or similar occupational classification as the employment in the initial I-140 petition, the USCIS will look as to whether the jobs are “identical”, resembling in every relevant respect or in the same kind of category or thing.

To be eligible to change or port from one job to another, the beneficiary’s adjustment of status application must have been pending for 180 days or more.

Also, the Form I-140, Immigrant Petition for Alien Worker, must have been approved or is approvable when concurrently filed with the adjustment application. There must be a valid job offer and the beneficiary must be eligible for employment preference classification.

If both the I-140 petition and the I-485 application remain pending for more than 180 days, the beneficiary is not automatically entitled to port. The USCIS must first determine whether the initial I-140 petition is approvable. If USCIS finds that it is, then it will adjudicate the adjustment of status application to determine whether the new position is in the same or similar occupational classification. The I-140 petition must be approved before portability is granted.

If the I-140 petition is subsequently denied, the beneficiary cannot invoke the portability rule.

The USCIS adopted the decision of the Administrative Appeals Office (AAO) in the Matter of Al Wazzan relating to the portability rule as it applies to denied I-140 petitions.

In that case, the applicant insisted that he was entitled to port under AC21 based on his new job offer because his I-485 application had been pending for more than 180 days at the time USCIS denied his application. The I-140 petition filed on his behalf was denied by the USCIS on the ground that the applicant was not entitled to the employment classification sought.

The AAO held that portability rule cannot apply where the I-140 petition is not valid. A denied I-140 petition cannot be considered valid regardless of whether the petition was adjudicated 180 days or more after the filing of the adjustment of status.

An I-140 petition is considered valid if filed on behalf of an alien entitled to the employment classification sought. Put simply, the portability rule cannot apply where there was never a valid petition from which to port.

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