Last month the USCIS announced a change in procedure regarding processing of unlawful presence waivers. Under the current procedure, people who entered the United States without inspection, meaning they worked across the border without presenting proper entry documentation such as visa, were ineligible to apply for permanent residence or a waiver until they left the United States. Of course, once they left and their waiver application was denied and they appealed, they were already separated from their family for months or even years. This rule applied to spouses of US citizens as well. Needless to say such a rule was very harsh on the marriage, especially if there were children involved and the foreign national was the only breadwinner in the family. Often, the undocumented entry happened years ago, sometimes even when the foreign national was a child, but the consequences were the same. Last month , USCIS decided to accept stateside processing of the waiver, which means the procedure of applying for the waiver changed but the requirements to meet eligibility are the same. The new change allows the family to file an application for a waiver of the unlawful presence from within the United States. If the waiver is approved, then the foreign national still needs to travel to his or her home country to obtain an immigrant visa at a US consulate. However, the time spent waiting for approval of the waiver, which often takes several months or even years, is spent together by the family without being separated and without additional unnecessary separation. It is a much more humane approach, giving credence to the statements that the USCIS values family unity. Please keep in mind that the standard to obtain a waiver remains the same. A US citizen spouse must still demonstrate that he or she will suffer “extreme hardship” if the foreign national is deported from the US. This is a very high standard to meet and by no means can it be considered a given in every situation just because a marriage exists. Separation alone and financial hardship alone is insufficient. There must be a showing of more in order to meet the “extreme” test. Often, even families with children and long term marriages are not able to prove extreme hardship in the case of deportation of the foreign national. Nevertheless, for those who have strong meritorious cases, the new procedure lessens their financial burden and eases their suffering by allowing the family to be together while the waiver is adjudicated. Last Wednesday, the USCIS announced that the new rule is not yet in place and that in several months it will publish it allowing comments on it before it ones final.

Nowadays many people meet on the Internet on the various social sites and they often live in different states and maybe even different countries. After they meet face to face and fall in love, the issue arises of how to bring the foreign national national to the United States as fast as possible. If they get engaged and plan to marry soon, one available option to them is the fiancee visa. That type of visa allows the foreign national to enter the Unites States for the specific purpose of marrying the US citizen fiancee within 90 days of entry. The process of applying for a fiancé visa begins with the US citizen filing a petition from within the Unites States asking the US Citizenship and Immigration Service to validate the relationship. In order to do this, the US citizen must demonstrate that he os she has a bona fide real relationship with his foreign born fiancé and that they have physically met during the last two years. The usual evidence presented are copies of e-mails, phone calls logs, pictures, and traditional letters and cards. Copies of plane tickets evidencing travel of the US citizen to the foreign country to visit his fiancé are also very helpful. Once the Immigration Service approves the fiancé petition, the file is transferred to the National Visa Center, which then requires the filing of additional forms and application such as the affidavit of support to establish that the US citizen has sufficient income to support his fiancé and future wife. Tax returns, pay stubs, and possibly bank statements mat be necessary to prove this. The foreign national must also submit evidence that she had not been convicted of any serious crimes, and that she has no prior immigration violations. She must also have a special medical exam done to ensure she has no communicable diseases or other issues, such as addictions, that would render her inadmissible. After the NVC completes processing of the fiancé application it forwards the complete file to the appropriate consulate where an interview is scheduled for the foreign national. The consul reviews all of the evidence presented and makes a final determination whether a visa should be issued. After a fiancee visa is issued, the foreign national travels to the United States where she obtains an entry stamp at the border and is admitted for a period of 90 days. During that time, she must marry her American fiancé. Once the marriage takes place, the couple files more paperwork to apply for an adjustment of status (green card) for the foreign national. If the marriage does not take place, the foreign national must depart the United States. She cannot change her visa category to any other visa category and she cannot apply for a green card based on any other petition, whether employment or family based even if she marries another US citizen. If the original relationship falls apart and marriage never takes place but the foreign national does meet another US citizen it is very important to quickly consult and immigration lawyer to understand the available options and not violate the law in a way which would make future sponsorships difficult or impossible. To summarize the fiancé visa petition is usually a faster option of bringing a girlfriend or boyfriend whom we plan to marry soon to the Unites States than an immigrant visa. Because there are very specific rules that must be followed and every situation is different, it is always best to seek competent legal advice before proceeding with a fiancé visa.

Overview

Obtaining a Labor Certification from the Department of Labor (DOL) is the first step of the Employment Based Permanent Residence sponsorship process. DOL regulations govern this step of the process, which is generally referred to as PERM. The PERM regulations require that prior to submitting the Labor Certification Application the employer must fulfill specific requirements in order to show that there indeed is a position opening which the employer sponsor is unable to fill with U.S. workers. The employer sponsor must show that employing the alien will not detrimentally affect the job market, and that no qualified U.S. worker applicants are available. This entails drafting an acceptable job description, obtaining the prevailing wage from the Department of Labor, completing a recruitment process, reviewing applicant resumes, and performing applicant interviews, if needed. The entire recruitment process must take place within 180 days prior to submitting the Labor Certification Application. All recruitment efforts must be completed 30 days prior to the actual date of submitting the Labor Certification Application. This means that the recruitment process really needs to be completed within 150 days of the date on which the first recruitment effort began.

Job Description

The job description of the position the alien is sponsored for must be acceptable to the DOL. The DOL uses an occupation information database called O*NET as the standard by which sponsored positions are measured. To be acceptable, the position must conform to or resemble an occupation listed in O*NET. Several aspects are taken into consideration when determining the proper job description, including the required education, the required years of experience, and specific duties.

Prevailing Wage

Once an acceptable job description has been agreed upon, the next step is to obtain wage determination (PWD) from the federal Department of Labor via an on-line portal. The PWD establishes the minimum wage the employer will have to pay the alien once the alien obtains permanent resident status, often referred to as the “green card.”

Recruitment Process

The types of recruitment required under PERM regulations depend on the type of position for which the alien is sponsored. The basic recruitment process for positions consists of posting a job order with the state workforce agency where the position is available, placing newspaper advertisements, and posting a notice on the job site. If the sponsored position is considered a professional position, then three additional recruitment efforts are required. The PERM regulations provide a list of options from which to choose from for these additional recruitment efforts. The position is considered professional if it requires a bachelor’s degree or a more advanced degree, as adjudicated by the Department of Labor.

The recruitment process also entails reviewing any applicants who respond to the advertisements. Each applicant must be reviewed to determine whether the application qualifies or may qualify for the position. If an applicant appears to qualify, then the employer must contact the applicant for an interview to determine whether the applicant truly qualifies and is actually interested. These interviews an be conducted over the telephone. All applicants, if determined not to qualify, must be disqualified for lawful reasons. These reasons include not meeting the minimum requirements for the positions, unavailability, disinterest, poor or unverifiable references, etc.

Employer Petition Process with the Immigration Service

Once the Department of Labor certifies the application, the next step for the employer sponsor is the submit an Immigrant Petition on behalf of the prospective employee. The petition is filed with the Citizenship and Immigration Service. Along with the petition, the employer sponsor must submit copies of most recent federal income tax returns of the company to demonstrate it’s ability to pay the prevailing wage for the position. The employer sponsor must show that it has enough net income or net current assets to pay the future wage offered to the prospective employee. The tax returns remain confidential and are not released to the sponsored employee.

Application for Permanent Residence

After the Immigration Service approves the immigrant petition of the employer sponsor, the prospective employee submits an application for permanent residence and permission to work. This is the actual so-called application for a green card. At this stage, most of the documents are completed by the prospective employee and the employer sponsor has a very limited role. This is the final stage in the sponsorship process, and once, completed successfully, the sponsored employee obtains his green card and he becomes a lawful permanent resident of the United States and is able to commence employment in the field for which he or she was sponsored.

What happens when a pregnant woman who is a Legal Permanent Resident in the United States travels to a foreign country, say on a vacation to Mexico, and gives birth to her child there? What is the immigration status of the child? Is the child a US green card holder like the mom or does the mom have to file a relative petition for her child and wait several years until it becomes current? Are there any special exceptions for this type of situation, and if there are, what is the procedure to bring the child to the United States so he can live with his parents? These are all good questions especially given the fact that normally lawful permanent resident parents must file a relative petition for their children to bring them to the United States. Normally, the visa category for see types of petitions is backlogged because here aren’t enough green cards to go around and the children must wait several years (between two and five) to receive a green card. So this type of procedure would cause great hardship for the family who would all of a sudden be separated and forced to quickly find ways to live in a new country while the petition awaited its turn in line. Therefore, thankfully Congress envisioned the difficulties that would befall a family in this type of situation and it create da special provision for children born abroad to lawful green card holders. In this case the child is automatically a Legal Permanent Resident provided the mom brings the child to the United States prior to the child’s second birthday. If the child enters the US before he or she turns two years old, he will be a lawful green card holder. If for some reason mom misses the boat and does not bring the child to the US prior to the child turning two, then the child is not a permanent resident and the mom must file a petition for the child and wait several years for the petition to become current. If the mom brings her child with her to the United States during the two year period then all she needs to obtain prior to entry is a transportation letter from e US Consulate in the foreign country indicating that the child can enter. The letter will be sufficient proof at the border and no actual green card is needed. After the child enters the United States, the mom can apply to have a green card issued to the child and that is a much simpler and quicker process. In offer to issue the transportation letter, the US Consulate will need the child’s birth certificate and the mom’s green card and any other pertinent documentation. So, moms don’t worry! Even when circumstances force you to give birth abroad, your children are protected by this provision and they are Legal Permanent Residents just like you, as long as you bring them back to the US within two years.

In Illinois you may contact Child Support Services under the Illinois Department of Healthcare and Family Services at 1-800-447-4278 to make payment arrangements.  You may find more information on their website at http://www.childsupportillinois.com/.  In Illinois, state law also allows for a suspension of a driver’s license of a parent who is delinquent in payment of child support.  

 If you believe that you may be behind in payment of child support, it is best to contact Child Support Services prior to applying for a U.S. passport so your application is not denied or delayed if your name is found on a list of outstanding arrears.  Make sure to plan well ahead of your planned departure date, so you don’t miss your flight or a long-planned vacation!

Survivor Benefits Deadline of October 28, 2011 Approaches for Some Widows and Widowers of U.S. Citizens

This update concerns an approaching deadline for certain eligible widows and widowers of U.S. citizens if seeking immigration benefits on the basis of their marriage to the deceased.

Brief Background

On October 28, 2009, Congress amended the law governing immigration benefits for widows and widowers of U.S. citizens. The previous law required a widow(er) to be married to the U.S. citizen spouse for two years before being eligible to seek survivor benefits in the event of the citizen spouse’s death.

The new law eliminates this two-year requirement, allowing the surviving spouse to apply for lawful permanent residence even if married for less than two years prior to the spouse’s death and regardless of whether the spouse had ever filed Form I-130, Petition for Alien Relative (I-130 petition).

Deadlines for Filing:

• Widows and Widowers Without Pending Cases:
Eligible widows and widowers of U.S. citizens who died on or after October 28, 2009, but who did not have an I-130 petition pending on October 28, 2009, may file an I-360 petition within two years of the death of the U.S. citizen spouse.
If the death of the U.S. citizen spouse occurred prior to October 28, 2009, the foreign national widow(er) must file an I-360 petition prior to October 28, 2011.

• Widows and Widowers With Pending I-130 Petition:
Qualified widows and widowers of U.S. citizens whose deceased spouse previously filed an I-130 petition on their behalf now have their cases automatically converted to an I-360 petition, when USCIS is notified of the petitioner’s death.

If you were married to a U.S. citizen who recently died before you obtained permanent residence it is important that you contact a qualified lawyer before the October 28th deadline. The law firm of Agnieszka E. Debicki & Associates, LTD. welcomes your comments and questions.