Seguritan US Immigration Articles

Documenting I-751 Petition To Remove Green Card Condition

An alien who receives a green card through marriage that is less than two years is granted a conditional residence status. The conditional residence status expires two years after it is granted. The petition to remove conditions on residence is made on Form I-751.

It is imperative that the petition is filed as failure to do so will result in the automatic termination of the conditional LPR status of the alien spouse. Once terminated, the case may be processed for issuance of a notice to appear in removal proceedings

If the petition is jointly-filed by the spouses, it must be filed within 90 days before the conditional residence status expires. The USCIS will process a late petition only if the delay is caused by extraordinary circumstances beyond the applicant’s control. If the marriage has been terminated through a final divorce or annulment, the alien spouse may file the petition with a request for waiver of joint filing. This is also made on Form I-751 and may be filed any time after the conditional residence status is granted but before removal from the U.S.

Evidence showing a bona fide marriage and continued marital union must be submitted to establish eligibility. The same is true for the alien spouse requesting a waiver of joint filing. He must submit evidence proving that the marriage was entered into in good faith and was not made for the purpose of obtaining residency.

Recently, the USCIS reviews I-751 petitions with more scrutiny. Evidence which the USCIS used to consider adequate is no longer sufficient to meet the standard of proof. More Requests for Evidence (RFEs) have been issued requiring more documents to prove good faith marriage and continued marital union.

Evidence 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.

Note that proof of the existence of a joint account is no longer sufficient as USCIS requires account statements showing deposits or withdrawals for the period of marriage. Also, joint tax forms are no longer adequate as the USCIS requires proof of filing with the Internal Revenue Service (IRS).

Affidavits of persons who have personal knowledge of the marital relationship may also be submitted. Documentation of family vacations and photographs may also be included. Although these are not concrete evidence of bona fide marriage, the USCIS considers these helpful in adjudicating I-751 petitions.

If the director of the regional service finds the evidence sufficient, he may waive the interview and approve the petition. If not, the petition will be forwarded to a district director having jurisdiction and will assign an immigration officer who will conduct the interview.

Where the evidence is insufficient, it will deny the I-751 petition and the conditional residence status is terminated as of the date of the decision. There is no appeal from the decision. Proceedings for removal will be initiated and the alien may seek review of the decision in removal proceedings.

Proposed Waiver Rule Expected to Benefit Thousands

The Department of Homeland Security on January 6, 2012 announced that it is proposing a rule that will allow spouses and children of U.S. citizens, who are ineligible to adjust status, to apply for a provisional waiver in the U.S. before leaving to process their immigrant visa application abroad. Under the current law, waivers are filed outside the United States.

This was in response to recommendations made by advocacy groups, including the American Immigration Lawyers Association.

Under the law, those who were unlawfully present in the U.S. for more than 180 days but less than one year face a 3 year bar to reentry. If the unlawful presence reached 1 year or more, the bar is 10 years. This bar takes effect when the alien departs from the U.S. If the inadmissibility due to unlawful presence is waived, the bar will not apply.

Adjudication of waivers could take anywhere from three months to several years. If the alien applies for the waiver abroad, he/she will be separated from his/her family in the United States. If the waiver is denied, unless an appeal is successful the alien may have to spend the rest of the 3 or 10 year period overseas and away from his/her family.

This proposal will benefit thousands of families. Stateside processing will bring undocumented immigrants out of the shadows by encouraging them to apply for a green card and file for a waiver while they remain in the United States. It will also streamline the waiver process.

To qualify for the waiver, the alien must establish that he/she is the immediate relative of a U.S. citizen and that the denial of the waiver would result in extreme hardship to a qualifying relative. The qualifying relative must be a U.S. citizen spouse or parent.

Note that only immediate relatives are covered, so sons and daughters over 21 years of age of U.S. citizens, as well as siblings of U.S. citizens, are not affected by this rule change. The rule also will not apply to family members of lawful permanent residents.

The proposal is also limited to waiver of unlawful presence. It does not include waiver of other inadmissibility grounds such as fraud or misrepresentation and criminal conviction. Aliens subject to these inadmissibility bars must obtain a waiver under the normal procedure, i.e. depart the United States and file a waiver application after a finding of inadmissibility at the U.S. consulate.

Since the proposed rule is quite narrow, it is important to seek the guidance of competent counsel before applying for the provisional waiver and leaving the United States.

While this new procedure will keep families together and reduce the time that they are separated, there is no reason why the DHS should not cover adult children of U.S. citizens, and spouses and children of LPRs under the proposal. Hopefully they will be included in the final rule expected to be released this year.

Bill Eases Green Card Wait for Some Countries

There is both good news and bad news in the immigration bill that was overwhelmingly passed by the House of Representatives last November 29.

Because the bill seeks to eliminate per-country quotas for the employment-based categories and increase quotas for family-based applicants, but without adding new visas, a few countries will have shorter waiting times for a green card while other countries will see an increase in visa backlogs.

The bill, called the Fairness for High-Skilled Immigrants Act, was sponsored by Republican Congressman Jason Chaffetz of Utah along with known immigration hardliner Rep. Lamar Smith of Texas. It is on its way to the U.S. Senate and, once passed, President Obama is expected to sign it into law.

Current law places an annual visa cap of 140,000 for employment-based categories and 226,000 for family-based categories, and only 7% of that total number can be allocated to nationals of each country.

The bill will benefit employment-based applicants from India and China. Under the EB-3 category, the December 2011 cut-off dates are September 8, 2004 for China (April 22, 2003 for EB-3 Other Workers) and August 1, 2002 for India (July 22, 2002 for EB-3 Other Workers). For the EB-2 category, the cut-off date is March 15, 2008 for both countries. Their cut-off dates will significantly advance if the bill becomes law.

Since the bill does not create new visas, retrogression will worsen for other countries. The Philippines and the rest of the world will experience further retrogression in the EB-3 category, where the cut-off currently is January 15, 2006 (January 1, 2006 for Other Workers).

And although visa numbers are currently available to all countries other than India and China in the EB-2 category, their nationals would have to wait longer for a green card as a result of the bill.

By 2015, there would definitely be backlogs for all countries in both employment-based categories because under the bill there will only be one waiting line, and one cut-off date, for each category for all countries.

On the other hand, Filipinos and Mexicans stand to benefit from the changes in the family-based preferences. The 7% per-country cap will be raised to 15%, which could result in further retrogression for other countries. As more visas become available, the wait for a green card becomes shorter for many Filipino and Mexican families.

The need to attract talent and maintain competitiveness is the main reason behind the bill. Businesses that hire highly educated and skilled workers, particularly in science and technology, have been asking the government to ease the wait for employment-based green cards.

A significant number of employer-sponsored immigrants come from China and India but because of the annual cap and per-country limits their visa backlogs are larger. For example, according to a study an Indian professional sponsored for an EB-3 visa today would actually have to wait 70 years to get a green card because of the sheer number of visa applicants from India.

Not surprisingly, critics of the bill say that fairness to highly-skilled workers from China and India is unfairness to highly-skilled workers from other countries. By replacing one backlog with another, the bill is perceived to be favoring Chinese and Indian nationals at the expense of nationals of other countries.

It remains to be seen if Congress will at least make more visas available instead of just reallocating them. The real solution is comprehensive immigration reform but, given the current political climate, it seems unrealistic to expect one to be passed in the near future.

USCIS Issues Guidelines on Surviving Relatives

The USCIS has recently issued its policy memorandum on the implementation of the law (Section 204(l)) enacted on October 28, 2009 that allows approval of a visa petition or refugee/asylum petition and also adjustment application despite the death of the qualifying relative.

Under the law, the surviving relative seeking the immigration benefit must have resided in the U.S. when the qualifying relative died, and continues to reside in the U.S. on the date of the decision on the pending petition or application.

The surviving relative must be one of the following: the beneficiary of a pending or approved immediate relative visa petition; the beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries; any derivative beneficiary of a pending or approved employment-based visa petition; the beneficiary of a pending or approved Form I-730 or Refugee/Asylee Relative Petition; an alien admitted as a derivative “T” or “U” nonimmigrant; or a derivative asylee.

The qualifying relative refers to an individual who before his/her death was the petitioner in a family-based immigrant visa petition; the principal beneficiary in a family-based visa petition case; the principal beneficiary in an employment-based visa petition case; the petitioner in a refugee/asylee relative petition; the principal alien admitted as a T or U nonimmigrant; or the principal asylee who was granted asylum.

USCIS released the final Policy Memorandum (dated December 16, 2010) only on January 7, 2011, although it issued the draft memo almost eight months ago. The Policy Memorandum states that it ensures that USCIS “uniformly and consistently adjudicate(s) petitions and applications” in light of the change in the law.

Previously, when the petitioner in a family-based petition died, the petition would be denied or automatically revoked. In other words, the petition died with the petitioner. The only way for the beneficiary to receive an immigrant visa was through a reinstatement of an approved I-130 petition on humanitarian grounds.

Note that Section 204(l) also allows “any related applications” to be adjudicated despite the death of the qualifying relative. This means that the USCIS may grant a waiver or relief from inadmissibility to an alien covered by Section 204(l) even if the qualifying relationship that would have supported the waiver has ended through death.

The guidance allows aliens who were not physically present in the U.S. at the time of the qualifying relative’s death to prove that they were residents in the U.S. It also states that Section 204(l) does not require the alien that he/she was, or is, residing in the U.S. lawfully. Residence, as opposed to mere physical presence, is one’s “principal, actual dwelling place in fact, without regard to intent”.

The alien availing of Section 204(l) must submit an affidavit of support from a substitute sponsor unless a legally binding affidavit of support was not required in his or her case.

The USCIS guidance memo states that the law covers any case adjudicated on or after October 28, 2009 even if the case was filed before that date.

If a case was denied before October 28, 2009, an alien may file a motion to reopen the petition, adjustment application or waiver application.

Retrogression in Philippine Family Preferences

The December 2010 Visa Bulletin released by the Department of State shows a significant retrogression of the Family 2B, Third, and Fourth preference categories for the Philippines. The retrogression is due to the sudden increase in the demand for visa numbers from applicants with very early priority dates.

The cut-off dates will move back as follows: 2B preference – 2 years and 6 months (from September 1, 2002 to March 1, 2000); 3rd preference – 2 years and 8 months (from March 1, 1995 to July 1, 1992); 4th preference – 3 years and 3 months (from April 1, 1991 to January 1, 1988).

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

The 1st and 2A family preferences will not retrogress. The 1st preference category, which refers to unmarried sons and daughters of U.S. citizens, will show the same cut-off date of April 1, 1997 as it was in the November visa bulletin. The 2A preference, which refers to spouses and children (less than 21 years old) of permanent residents, will advance to August 1, 2010.

The retrogression will occur after monthly jumps that started last April. Because of the low demand for visa numbers in the previous months, the Department of State increased the allocation pace and this was intended to generate visa number demand so that the annual numerical limits could be fully utilized.

The family 2B, 3rd and 4th preferences greatly advanced as a result, but this rapid advance could not continue indefinitely. At some point, it must slow down, stop or retrogress. It is hard to predict how long this retrogression will last.

In light of this development, beneficiaries of Philippines family-based 2B, 3rd and 4th preference who have priority dates earlier than September 1, 2002, March 1, 1995 and April 1, 1991, and who are currently in the U.S., must file their adjustment application on or before November 30, 2010 in order to get certain interim immigration benefits such as employment authorization. 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 filed on or before April 30, 2001. If the visa petition or labor certification was filed between January 14, 1998 and April 30, 2001, 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.

Family Preference Cut-off Dates Rapidly Move Up

The July 2010 Visa Bulletin shows significant advances in the family-based preference categories. The worldwide cut-off dates move up by several months from those indicated in June 2010 as follows: 1st preference – 7 months (April 1, 2005); 2A preference – 6 months (July 1, 2008); 2B preference – 5 ½ months (May 1, 2003); 3rd preference – 2 ½ months (September 1, 2001); and 4th preference – 4 months (January 1, 2001).

Applicants who have a priority date earlier than the abovementioned dates may be allotted visa numbers starting July 1. Those who are in the U.S. may be able to file their adjustment of status and employment authorization applications while those who are processing their immigrant visa applications abroad may be scheduled for visa interview.

The advance in the cut-off dates for Philippine applicants are as follows: 1st preference – 5 ½ months (September 1, 1995); 2A preference – 6 months (July 1, 2008); 2B preference – 12 months (March 1, 2000); 3rd preference – 12 months (May 1, 1993); and 4th preference – 12 months (April 1, 1989).

Benefiting the most under this latest development are the applicants under the 2B, 3rd and 4th preferences.

The 2B preference refers to the unmarried sons and daughters (21 years or older) of lawful permanent residents. The 3rd preference refers to the married sons and daughters of U.S. citizens. The 4th preference refers to brothers and sisters of U.S. citizens.

Philippine 2B applicants whose lawful permanent resident petitioners have become U.S. citizens are automatically reclassified under the 1st preference resulting in a much longer wait. They can avoid this by opting out to remain under the 2B preference.

Since April 2010, the Philippine family-based preferences have jumped considerably as follows: 1st preference – 18 months; 2A preference – 25 months; 2B preference – 17 ½ months; 3rd preference – 12 months; and 4th preference – 19 months.

The big jump in the family-based preferences is attributed to the very low level of demand for visa numbers in the last 1 ½ years. The U.S. Department of State has increased the pace in an attempt to generate demand so that the annual numerical limit of 226,000 may be utilized.

Applicants whose priority dates are earlier than the cut-off dates should complete their documentary requirements for their immigrant visa or adjustment of status applications. The Department of State has said that if the demand for visa numbers increases, the movement of the cut-off date would slow or stop.

The trend in the employment-based 3rd preference category is different. The demand for visa numbers continues to be heavy and therefore the cut-off dates have barely advanced.

The July 2010 worldwide (except for India and Mexico) cut-off date for 3rd preference skilled workers and professionals advances by 7 weeks (August 15, 2003) while that of the 3rd preference other workers category remains unchanged (June 1, 2001) as it has been since October 2009.

Mexican 3rd preference visa numbers continues to be unavailable while India’s 3rd preference skilled workers advances only by 1 month.

Based on current demands, the Department of State projects that by September 2010 which is the end of the current fiscal year, the worldwide cut-off dates (including Philippines) for the employment-based 3rd preference will be June through September 2004. The cut-off date for China will be October through December 2003 while India’s will be February 2002.

Enforceability of Affidavit of Support

Most family-based applicants for immigrant visa or adjustment of status are required to submit an affidavit of support (Form I-864) to guarantee that they will not become a public charge.

The affidavit must be completed by the U.S. citizen or lawful permanent resident who filed the relative (Form I-130) petition. The petitioner-sponsor must demonstrate that his/her income is at least 125% of the current federal poverty guidelines for his/her household size.

If the sponsor’s income is not sufficient to meet the requirement, the income of the spouse and/or other relatives living with him may be used. The income of unrelated dependents listed on the tax returns may also be included regardless of where they reside. The intending immigrant’s income may also be added to meet the requirement.

If the petitioner falls short of the requirement, a joint sponsor may submit a Form I-864. A joint sponsor must be a U.S. citizen or lawful permanent resident who is at least 18 years old and domiciled in the U.S. or its territories. A joint sponsor does not have to be related to the petitioner or the intending immigrant.

Substitute sponsors are also allowed if the original I-130 petitioner has died and the petition is allowed to continue. Under a recent law, surviving relatives of an I-130 petitioner may process their green card applications provided they were here in the U.S. at the time of the death of the petitioner and they continue to reside in the U.S.

A substitute sponsor must be related to the intending immigrant in one of the following ways: spouse, parent, mother-in-law, father-in-law, sibling, child at least 18 years old, son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild or legal guardian. Such relative must be a U.S. citizen or a lawful permanent resident.

Executing the I-864 affidavit of support should not be taken lightly as it is a legally binding contract once the sponsored alien becomes a lawful permanent resident. It may be enforced against the sponsor and/or joint sponsor by a federal state or local governmental agency or by the sponsored immigrant.

If the sponsored immigrant receives means-tested benefits after he/she gets the green card, the government agency that gave the benefits may sue the sponsor to recover the funds given to the immigrant. The said sponsored immigrant who receives means-tested public assistance may be subject to removal proceedings.

Under the law, the sponsored immigrant also has the right to enforce his/her sponsor’s obligations. This could happen in a divorce proceedings. Even if the immigrant cannot be granted alimony, she may be entitled to support from the sponsoring spouse under the terms of the affidavit of support.

The sponsor’s obligation under the affidavit of support continues until the sponsored immigrant becomes a citizen or until he/she accumulates 40 qualifying quarters of work under the Social Security law or until he/she abandons permanent resident status and leaves the U.S.

Death of either the sponsor or the immigrant also extinguishes the obligations. But a divorce is not a ground to end the obligation.

Adjudicating Adjustment Applications of Surviving Relatives

The United States Citizenship and Immigration Services (USCIS) has started to approve adjustment of status applications filed under the new law by surviving family members of deceased petitioners. We filed an adjustment application last December on behalf of a daughter of a deceased father and after three months, the said daughter received her green card. 

The father had filed his I-130 petition in January 1998 but because of the huge backlog in the family-based 2B preference for her country, her visa number became available only in April 2009. She did not file her adjustment application at that time because her father had died in October 2004 and therefore, the I-130 petition was automatically revoked. 

The new law which became effective last October 28 was part of the Department of Homeland Security Appropriations Act for FY 2010 (Public Law 111-83). Two measures benefiting surviving relatives were contained in that law. 

The first measure ended the so-called widow penalty by allowing widows of U.S. citizens and their children to self-petition for themselves although they had been married only for less than two years. The second measure added a new provision to the Immigration and Nationality Act granting immigration relief to other surviving relatives. 

The surviving relatives with pending or approved petitions who benefit under the second measure of the law are the spouse, parent and minor children of a U.S. citizen; the married or unmarried son or daughter of a citizen; the spouse or child of a permanent resident and the brother or sister of a citizen. Also covered are the derivative beneficiaries of pending or approved employment-based petitions, the beneficiaries of asylee/refugee relative petitioner and nonimmigrant in T or U status and asylees. 

One of the requirements of the second measure is that the surviving relative must be residing in the U.S. at the time of death of the petitioner and must continue to reside in the U.S. Residence in the U.S. should mean domicile and not physical presence. So that if the surviving relative was on vacation abroad at the time of the petitioner’s death or was with the petitioner at the time of his/her death abroad, the relative should be eligible to file an adjustment application. 

There is a question as to whether the second measure that refers to other surviving relatives should be applied retroactively. It is not clear from the language of the law whether applicants whose qualifying relative died before the enactment of the law are covered. Some point out that they are not because while the first measure that ended the widow penalty specifically provided for its retroactive application to “transition cases”, no similar language was provided in the second measure referring to other relatives. In the case of our client, the USCIS adjudication office agreed with us that the law should be applied retroactively. 

The law also provides that any “related applications” may be adjudicated with the petition or the adjustment of status application. It could be argued that this provision allows the filing of waiver applications by applicants who are inadmissible or removable under existing immigration laws.

New Report Shows A Very Long Wait for Green Card

According to a recent report released by the U.S. Department of State, the number of family-based applicants on the waiting list for immigrant visa numbers as of November 2009 was 3,369,455 while the number of employment-based applicants was 130,509.

These figures include the principal applicants or petition beneficiaries as well as their spouses and children entitled to derivative status. They do not include immediate relatives (spouse, minor unmarried children and parents of U.S. citizens) who are exempted from the numerical limitation.

Not included in the figures are applicants for adjustment of status. They also do not include those who failed to respond within a year to the visa application letter of the National Visa Center notifying them of the availability of visa numbers within a reasonable time. These cases are considered inactive.

The above figures indicate that the wait for obtaining permanent resident status is going to be long in most of the visa preferences. In some categories, the wait for applicants form the Philippines, India, China and Mexico will be decades.

U.S. immigration laws set an annual worldwide limit as well as a per county limit of immigrant visas issued. There is also a limit on each preference category. During the fiscal year 2010 which runs from October 1, 2009 through September 30, 2010, visas issued are no more than 226,000 in the family-sponsored preferences and approximately 150,000 in the employment-based preferences. The per country limit is approximately 26,260.

The top five countries with the highest number of waiting list registrants are as follows: Mexico – 1,178,761; Philippines – 482,694; China – 197,559; India – 194,954; and Vietnam – 184,692

The number of registrants under the family-based preferences (F) are broken down as follows: F-1 (unmarried sons and daughters of U.S. citizens) – 245,516; F2A (spouses and children of permanent residents) -324,864; F2B (adult sons and daughters of permanent residents) – 517,898; F3 (married sons and daughters of U.S. citizens) -553,280; and F4 (brothers and sisters of U.S. citizens) 1,727,897.

The numbers of registrants under the employment-based preferences (EB) are: EB1 (priority workers) – 3,601; EB2 (advanced degree professionals/persons of exceptional ability) – 6,296; EB3 (skilled workers) – 103, 448; EB3 (other workers) 16,311; EB4 (special immigrants) 529 and EB5 (employment creation) – 325.

Of the F1 registrants, Mexico ranks first with 63,628 followed by the Philippines with 35,789. The numbers may increase because of the automatic conversion of pending F2B into F1 upon the naturalization of the petitioner. The automatic conversion may be avoided by availing of opt-out provision under the Child Status Protection Act. Many Filipinos have taken advantage of this law by opting to remain under F-2B in order to avoid the longer wait under F1.

Mexico also ranks first in the F2A, F2B and F4 while the Philippines ranks first in the F-3 preference.

In the employment-based categories, the Philippines ranks first with 47,470 followed by India – 24,365; China – 13,649; South Korea – 7,725 and Mexico – 4,728. As mentioned above, these figures do not include the number of adjustment of status applicants. The report notes that 90% of all employment-based preference immigrants are currently being processed as adjustment of status cases at the USCIS offices.

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