Petitioning and Adjustment Eligibility 101. Katrina Watson, Immigration Counseling Service Qingqing Miao, Shatz Law Group, PLLC

Transcription

1 Petitioning and Adjustment Eligibility 101 Katrina Watson, Immigration Counseling Service Qingqing Miao, Shatz Law Group, PLLC

2 Immigrant Visa vs. Nonimmigrant Visa Nonimmigrant visa: issued to persons with permanent residence outside the U.S. but who wish to be in the U.S. on a temporary basis (INA 101(a)(15)) Immigrant visa: visa issued to persons wishing to live permanently in the U.S. (INA 203, 209, 249, 240A)

3 Major Ways to Obtain Lawful Permanent Residency (Green Card) Through Family (Family-based) Through a Job (Employmentbased) Through Refugee and Asylee Status Other Ways: i.e. diversity immigrant visa program, registry, special immigrant juvenile, U & T visa, cancellation of removal, etc.

4 Immigrant Petition: A Necessary Step for Many Intending Immigrants In most cases, a petitioner is necessary for an individual to obtain permanent residency through a family relationship or employment. The intending immigrant is the beneficiary. The petitioner can be an employer or else a family member who is a U.S. Citizen or LPR.

5 Immigrant Petition: Major Categories Family-Based (I-130) Employment-Based (I-140, I-360 or I-526) If the Petitioner is a U.S. Citizen: Employment-based 1 st Preference (EB-1): Immediate Relative ( IR ) o o Spouse Unmarried child under 21 yo EB-1A: Individuals with Extraordinary Ability EB-1B: Outstanding Researchers and Professors o Parent Preference Categories: EB-1C: Multinational Executives or Managers o o Sibling (F4) Unmarried Son or Daughter (F1) EB-2: Professions with an advanced degree or its equivalent, or an individual w/exceptional ability o Married Son or Daughter (F3) If the Petitioner is an LPR (Only Preference Categories): EB-3: Professionals, Skilled Workers, or Other Workers EB-4: Special Immigrants Spouse/Child (F2A) Unmarried Son or Daughter (F2B) EB-5: Immigrant Investors

6 Immigrant Petition: Major Categories (Cont.) Special Categories for family-based adjustment (I-360): Battered Spouse or Child of a U.S. Citizen/LPR Battered Parents of a U.S. Citizen Widow(er) of a U.S. Citizen

7 Family-Based Petition: IR vs. Preference Categories Immediate Relative (IR) Preference Category No numerical limitation Can adjust under INA 245(a) even if out of status, if inspected and admitted Can adjust if entered under the Visa Waiver Program Do not have derivatives: separate petition for each family member Numerical caps, which may result in a long wait (See Visa Bulletin for priority dates) Must be in lawful status to adjust Spouses and children may accompany or follow to join the principal beneficiary without a separate petition

8 Family-Based Petition Definition of a Child : INA 101(b) Unmarried person under 21 Out of Wedlock: Additional proof for relationship if petitioner is the father. Step-relationships: Marriage forming the relationship must occur before the 18th Birthday Adopted Child Conditional Residence for New Spouse: If the marriage is less than two years old, the beneficiary will first receive conditional residence for two years.

9 Employment-Based Petition: EB-1 No need to obtain a labor certification from the Dep t of Labor Visa numbers are current No waiting period EB-1A: Achievement-based - for foreign nationals who have risen to the very top of their field of endeavor. Self-petition is permitted. EB-1B: Outstanding professors/researchers with 3+ years of experience. A permanent job offer is needed. EB-1C: Executives/Managers who have been employed abroad in that capacity with the foreign subsidiary, affiliate or subsidiary of the U.S. petitioning employer for at least 1 year in the last 3 years.

10 Employment-Based Petition: EB-2 Unless one qualifies for the National Interest Waiver ( NIW ), a labor certification is needed and one cannot self-petition. Visa numbers are not readily available for citizens of China-mainland and India. Advanced degree (or equivalent) is necessary, unless one is with exceptional ability. Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

11 Employment-based Petition: EB-3 Labor certification is required and self-petition is not allowed. Visa numbers are not current. Skilled workers: the job requires a minimum of 2 years training or work experience Professionals: the job requires a U.S. bachelor s degree or foreign equivalent and the employee is a member of the profession Other workers: unskilled labor that requires less than 2 years training or experience

12 Employment-based Petition: EB-4 Self-petition may be possible. Visa numbers are current for all qualified foreign nationals. Special immigrants: religious workers, eligible broadcasters, Iraqi/Afghan translators, international organization employees, armed force members, retired NATO-6 employees, etc.

13 Employment-based Petition: EB-5 Visa numbers are available. The Investor must invest $ 1 million (or $ 500,000, if invest in rural areas or Targeted Employment Areas) into a Newly Established Commercial Enterprise. The Investment must create 10 full-time jobs. The Investor will first receive conditional green card & must file petition to remove the condition 2 years later.

14 Adjustment of Status (AOS): Next Step for Qualifying Applicants Already in the U.S. Adjustment under INA 245(a) Adjustment under INA 245(i), allows for adjustment in the U.S. despite entry without inspection if the applicant was a beneficiary on a petition filed on or before April 30, Effectively waives certain requirements of INA 245(a) and (c). If AOS is not possible, beneficiary will have to return to home country and consular process.

15 AOS under INA 245(a) Inspected and admitted/paroled Lawful entry after inspection and authorization by an immigration officer. Paroled under INA 212(d)(5)(A) but not under INA 236(a)(2) (B). Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010) Lawfully in the U.S. (except for IRs, battered spouses/children, special immigrants) Admissible and eligible A visa number is immediately available: Visa Bulletin Must pass medical (I-693) and security clearance

16 AOS: Lawfully Present- What is Not Not in lawful immigration status on the date of filing. For AOS based on EB petitions, a parolee is not in lawful nonimmigrant status. Lawful immigration status does not include any period during which an adjustment application is pending. Dhuka v. Holder, 716 F.3d 149, (5 th Cir. 2013). Has failed to maintain continuously a legal status (except if it was through no fault of his/her own or for technical reasons). Be aware of INA 245 (k) for EB petitions.

17 AOS: INA 245(k) INA 245(k) allows certain beneficiaries of EB petitions to adjust who are otherwise ineligible under INA 245(c)(2), (c) (7) and (c)(8): Only available: EB-1, EB-2, EB-3, EB-4 (religious worker described in Section 101(a)(27)(C) only) Was lawfully admitted to the United States as a nonimmigrant Has not for an aggregate period of more than 180 days: o o o Failed to continuously maintain a lawful status Engaged in unauthorized employment; or Otherwise violated the terms and conditions of admission

18 AOS: Ineligibility INA 245, 245.1, examples include: Alien crewmen, including those w/ B, C and D visas A, G or E unless alien waives privileges and immunities on Form I-508 J visa holder required to, but does not meet, the 2-year residence requirement Entered under Visa Waiver Program (IRs exception) K visa holder unless if he/she marries w/in 90 days of entry & AOS is based solely on marriage to K-1 Etc.

19 AOS: INA 245(i) Special provision for AOS applicants who were the beneficiary of a visa petition or labor certification filed on or before April 30, Effectively waives certain AOS requirements found in 245(a) and 245(c), including: Entry without inspection Acceptance of unauthorized employment Failure to maintain lawful status Derivative beneficiary (spouse or child of principal alien) also grandfathered for 245(i) purposes Must pay an additional $1,000 application fee

20 AOS: INA 245(i) (Cont.) If grandfathering petition was filed after January 14, 1998 (but still on/before April 30, 2001), must show proof of physical presence in U.S. on December 21, Does not waive inadmissibility. Practice Tip: Make sure to ask if anyone has ever applied for the client or family members in the past. If there was a prior petition, the individual may be grandfathered under 245(i).

21 AOS: Forms to File G-28 - Notice of Attorney Petition (I-130/I-140/I-360) or Approval Notice of a Petition (I-130/I-140/I-360/ I-526) I-485 Adjustment of Status I-765 Employment Authorization I-131 Travel Document (Advanced Parole) G-325A - Biographic Information (Applicants between 14 and 79; U.S.C. Spouse Petitioner) I Medical Exam I Affidavit of Support (or I-864W Exemption) (EB-based AOS generally doesn t need this) Proper filing fees

22 AOS Initial Evidence Proof of lawful entry (unless qualify for INA 245(i)) Copy of passport page with nonimmigrant visa Copy of I-94 document Proof of lawful immigration status Birth certificate w/ translation Passport style photos Approval notice for immigrant petition Principal applicant s employment Letter (EB) Proof of qualifying relationship between principal applicant and all derivatives marriage license, birth certificate, adoption certificate, etc.

23 AOS: Concurrent Filing An immigrant petition and the adjustment application may be filed simultaneously. Possible when a visa number is immediately available at the time of filing The immigrant petition is adjudicated first. Generally allowed in: IRs of U.S. citizens living in the U.S. Most EB cases when a visa number is immediately available (Not EB-5) Special Immigrant Juveniles Certain self-petitioning battered spouse/child Certain Armed Forces Members

24 AOS Interview Each applicant for adjustment of status shall be interviewed by an immigration officer (8 C.F.R ) Interview may be waived

25 Helpful Resources Statutes: INA 245(a), 245(c), 245(i) Regulations: 8 CRF 245 USCIS Website: Kurzban Adjudicator s Field Manual CIS Memos AILA Message Board and AILA Link Foreign Affairs Manual ( FAM )

26 Petition and AOS: Hypo # 1 David is an 18-year-old Japanese citizen Holds an F-1 visa - Is attending University of Washington s undergraduate program (First Year), majoring in computer science David s mother is a naturalized U.S. citizen but David has been living in Japan with his father after his parents divorced David would like to see whether he can get a green card. What are his options?

27 Petition and AOS: Hypo # 1 (Cont.) Is David married? Does David qualify as an IR? Is David s mother willing to sponsor him? Affidavit of Support? Is David in valid F-1 status? Has David ever overstayed his visa? Has David ever worked in the U.S. without authorization? Does David have any overseas travel plans? How about David s biological father who is in Japan?

28 Petition and AOS: Hypo # 2 Josh is a Mexican citizen Entered in the U.S. with a B-2 visa Josh met Sally, a U.S. citizen, and they fell in love Josh and Sally would like to get married Josh wants to live in the U.S. with Sally

29 Petition and AOS: Hypo # 2 (Cont.) Can Josh adjust? What is Josh is a South Korean citizen who came in under the VWP? How long has Josh been in the U.S. since his entry? What if Josh was not questioned by the CBP officer when he was stopped at the border? What if Josh is currently working without authorization?

30 Petition and AOS: Hypo # 3 Mary is a citizen of China Is working as a professor of biology (tenure) at University of Portland Has H-1B visa (her 3 rd year) Holds a Ph.D. in Biology from Harvard University Has won major national science awards in biology Has published over 30 articles in national science journals that have been cited over 300 times Is a member of a prestigious association for biologist Has been featured in mainstream media for her research breakthrough

31 Petition and AOS: Hypo # 3 (Cont.) EB-1A? EB-1B? EB-2? Labor Certificate or National Interest Waiver? Problems with EB-2 for Chinese citizen? What if Mary is a Canadian citizen that was born in China? What if Mary was laid off from her teaching position and has not been working?

32 Petition and AOS: Hypo # 4 John is from Mexico. He came to the U.S. with his parents in 1994 when he was 14 years old. He and his parents did not have visas and were not inspected at entry. John has been living in the U.S. without status since John s parents are also still undocumented. John s aunt is a U.S. citizen, and John thinks that his aunt may have filed a petition for his mother sometime in the 1990s. John lives with his girlfriend who is an LPR. They have two U.S. citizen children together, ages 2 and 4. What are John s options? What else do you need to know?

33 Questions? Thank you for your time!