Employment Immigration, Immigration To The USA, USCIS, Visas

EXTENSIONS OF NON-IMMIGRANT PETITIONS WILL BE REVIEWED AS NEW SUBMISSIONS

October 25, 2017

EXTENSIONS OF NON-IMMIGRANT PETITIONS WILL BE REVIEWED AS NEW SUBMISSIONS

Author: Work Visa Immigration Attorney Alena Shautsova

USCIS has recently announced that it will no longer rely on previous approvals when deciding petitions for extensions of certain non-immigrant work visas.

This new policy will affect L1 petitions the most.

The changes

If previously, when the same company would file for an extension of the L1 petition for the same employee, USCIS would generally rely on the first approved petition to determine the validity and sufficiency of the extension request, now, USCIS will consider each request for an extension as a new petition.

Specifically, the new policy states:

“In adjudicating petitions for immigration benefits, including nonimmigrant petition extensions, adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The burden of proof in establishing eligibility is, at all times, on the petitioner. The fundamental issue with the April 23, 2004 memorandum is that it appeared to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same. Not only did this improperly shift the burden of proof to the agency contrary to INA § 291, but it was also impractical and costly to properly implement, especially when adjudicating premium processing requests.”

It means that a requestor for an extension will have to resubmit all documents that were necessary to qualify the beneficiary initially, plus more documents establishing qualifications for an extension. Such documents may be, but are not limited to: records of payroll, copies of tax returns, bank account statements, contracts, etc. (The large companies have different requirements).

Deportation, USCIS, Visas

I-751 Petition, Questions and Answers

October 11, 2015

I-751 Petition, Questions and Answers

Author: Green Card Attorney Alena Shautsova

A conditional permanent resident has to file a petition to remove condition from the residency within 90 day period prior to the second anniversary of his/her status.

LATE FILING

The joint petition (when spouses are still living together) must be filed within the 90 days period, and if it is not, the couple has to present a very good excuse for missing the deadline, otherwise the petition will be rejected.

The petition that contains request for a waiver, on the other hand, can be filed at any time. For example A, conditional permanent resident (CPR), divorced from a USC (a U.S. citizen) just a year after A become a CPR. “A “ does not need to wait to file her petition. Another example, A is a battered spouse. She is still married to a USC who has been abusive. A missed her deadline and her conditional permanent resident card expired. “A” can still file the I 751 petition, even if the deadline is missed.

What is not a good excuse for late filing of the joint petition? Being abroad is not an excuse for late filing of the joint petition. The couple who are abroad must file the petition within the 90 day period prior to the second anniversary of the green card status.

DOES THE STATUS REALLY EXPIRE?

The warning notices say that if the a conditional permanent resident does not file the petition to remove condition timely, his/her status automatically expires. What really expires is the card itself. The status does not expire, despite the warning. In fact, the USCIS or an Immigration judge has to terminate the status in order for “A” to start the process again with a new USC-spouse. It also means that “A” technically will remain a permanent resident, but a conditional one and prior to undertaking any other Immigration steps, she would have to submit an I-751 petition, even if it will be filed late in order to get a finality for her situation. In this case, if the petition is denied, then the status will be terminated. (Does not apply to those seeking adjustment as refugees or asylees).

DO I INCLUDE CHILDREN IN MY I -751?

Yes, dependent children, those who receive their green card with their parents within 90 days of the parent’s conditional green card or, as often it happens, on the same day, must be included in the I -751 form. What do to if the child turns 21 by the time I-751 should be filed? The answer is : file the petition including that child. The statute that talks about removal of the condition for dependents refers children and sons and daughters, meaning, that under INA, I-751 properly included with the parents should receive their permanent resident status as well. See also Caprio v. Holder, 592 F.3d 1091 (10^th Cir. 2010).

Finally, most common question: I was married to the U.S. citizen, and now we are divorced. Did I lose my status? The answer is NO, you did not lose your status. All you need to do is to file I -751 by yourself. It may be a little bit more challenging, as you need to show that you had a real marriage, but it is possible. If you are successful, you will receive a permanent green card.

FUN FACT: One can submit an unlimited number of I 751 petitions.

Immigration To The USA, Uncategorized, USCIS, Visas

New Rule on Notices From USCIS

January 29, 2015

New Rule on Notices From USCIS effective 01/27/2015

Author: New York Immigration attorney Alena Shautsova

United States Citizenship and Immigration Services published its new rule on notices USCIS issues to applicants and petitions. Notices are extremely important: they confirm the receipt of an application or petition; valid status in the US or a date for an interview. Currently, the notices are sent to an applicant or petitioner and a copy is sent to an attorney of record. USCIS now clarifies its rules in that:

” First, USCIS will clarify that it will send notices only to the applicant or petitioner when the applicant or petitioner is unrepresented. See new 8 CFR 103.2(b)(19)(i). Second, if USCIS has been properly notified that the person or entity filing the benefit request is represented by an attorney or accredited representative recognized by the Department of Justice, Board of Immigration Appeals, USCIS will send notices to the applicant or petitioner who filed the benefit request and to their attorney or accredited representative of record. See new 8 CFR 103.2(b)(19)(ii)(A). Third, if provided for in the applicable form, form instructions, or regulations for a specific benefit request, an applicant or petitioner may request that USCIS send original notices and documents only to the official business address of their attorney or accredited representative, as reflected on a properly executed Notice of Entry of Appearance as Attorney or Accredited Representative, with a courtesy copy being sent to the applicant or petitioner for their records.”

Finally, in case of electronic applications, the person has options: the notices may be sent electronically to both the applicant and the attorney or via mail.

Most importunately, the official documents such as EAD (work authorization card) or permanent resident card currently are being sent to the applicants only unless the applicant or self-petitioner designates their attorney’s official address as the delivery address.

These rules of notice delivery may seem trivial, however when a notice is not delivered it causes delays, denials and frustration. For more information see http://www.aila.org/content/fileviewer.aspx?docid=50525&linkid=281897

Uncategorized, USCIS, Visas

RELIEF FOR CITIZENS OF EBOLA AFFECTED COUNTRIES

August 15, 2014

RELIEF FOR CITIZENS OF EBOLA AFFECTED COUNTRIES

Ebola Outbreak-related Immigration Relief Measures to Nationals of Guinea, Liberia and Sierra Leone Currently in the United States

Release Date: August 15, 2014 by USCIS

U.S. Citizenship and Immigration Services (USCIS) is closely monitoring the Ebola outbreak in West Africa. USCIS offers relief measures to nationals of those three countries who are currently in the United States.

Immigration relief measures that may be available if requested include:

Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
Extension of certain grants of parole made by USCIS;
Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
Expedited processing of immigrant petitions for immediate relatives (currently in the United States) of U.S. citizens;
Expedited adjudication of employment authorization applications, where appropriate; and
Consideration for waiver of fees associated with USCIS benefit applications.

To learn more about how USCIS provides assistance to customers affected by unforeseen circumstances in their home country, visit www.uscis.gov/humanitarian/special-situations.

Immigration To The USA, USCIS, Visas

I-94 electronic record

April 29, 2014

I-94 electronic record of admission

Author: New York Immigration lawyer Alena Shautsova

For a very long time the record of inspection and admission, I-94 form was issued on paper, and was the only proof of alien’s legal admission into the U.S. The form looked like a card, the paper used for it was white, and soon enough many practitioners started to refer to it as the “white card.” Even though, the CBP, should maintain records of everybody who entered the country from a specific point in time, in practice, to restore someone’s I-94 if it got lost, is almost impossible if the information on form I-102 (form that is used to restore the lost I-94 card) does not match completely the CBP records and/or a copy of the admission stamp is not attached…

Recently, Department of Homeland Security decided to switch from paper to electronic record of all arrivals. Now, instead of paper I-94, a person’s information is recorded electronically. A person can (or should be able to ) retrieve information regarding his/her past travels from the CBP database using their website.

Unfortunately, sometimes the new system does not work. In this case, the website directs the person to go to the nearest CBP differed inspection office for help…

Here is the link to the website with questions and answers regarding the new I-94 process: https://i94.cbp.dhs.gov/I94/request.html

The bottom line that it is still a good practice to keep copies of your passport with travel admission stamps throughout your “immigration life” in the U.S. Store them both in paper form and electronically, and hold on to the old I-94 by all means!

Immigration To The USA, USCIS, Visas

March 2014 Visa Bulletin is Here

February 8, 2014

Visa Bulletin provides schedule for Immigrant visas for family and employment based immigration. The US government establishes a number of categories for immigrant visas and a certain number of immigrant visas available for each category. As a result, there is a wait time for people in each category to get their immigrant visa, except for those who qualify as intimidate relatives of US citizens (spouses, parents and children under 21 years old).

Each month the Department of State updates Visa Bulletin with current state of the wait time.

You may view the Visa Bulletin for March 2014 here.

Deportation, Employment Immigration, Immigration To The USA, USCIS, Visas

CLAIMING US CITIZENSHIP ON I9 FORM WILL CAUSE PERMANENT INADMISSIBILITY

January 27, 2014

CLAIMING US CITIZENSHIP ON I9 FORM WILL CAUSE PERMANENT INADMISSIBILITY

Author: New York Immigration attorney Alena Shautsova

According to the laws of the US, when an employer is hiring an employee, the employee must fill out I-9 form: this form helps an employer to determine if the potential employee has a proper employment authorization and may accept employment in the US. The form consists of simple questions and check boxes and one of those check boxes asks the filler to answer if he/she is a US citizen or US national. Of course, answering YES or checking off this box will mean that the person who is filling out the form has the proper documentation to work in the US.

Many immigrants without employment authorization are tempted to check off that little square “Citizen or National of the US.” However, many of them ignore the drastic consequences.

This happened in the case of Nyabwari. She entered the US on a visa, overstayed it, and later married a US citizen. She though she would have no problem receiving her green card. Indeed, many with the same situations can got citizenship.

However, the government learned that at some point in time, while in the US, Mrs. Nyabwari was working illegally, and to make the situation worse, the government discovered that Mrs. Nyabwari submitted form I-9 to her employer stating she was a US citizen or US national.

Mrs. Nyabwari’s explanation that she did not understand who the national was, did not help her. Both, Immigration judge and the Board of Immigration Appeals said that checking off that one box caused Mrs. Nyabwari to be PERMANENTLY inadmissible into the US, as this was a violation of the US laws for which there is no waiver.

The end of Mrs. Nyabwari’s immigration saga is very sad: she will likely to have to leave the country permanently or to stay in the US illegally forever. This serves as a great lesson: if you in doubt, you must consult an attorney to avoid “deporting” yourself before your time.

USCIS, Visas

Prepare for Your Travel to the USA

January 13, 2014

Prepare for Your Travel to the USA

Author: US Visa Attorney Alena Shautsova

How one can prepare for travel to the US? What do one need to come to the US and be admitted without issues at the border?

First of all, one must be in possession of an unexpired passport that would expire only 6 months after the intended departure from the US. If you travel with a visa, a consulate would not stamp your passport if its expire date is sooner than 6 months from the date of the intended departure. If you come on ESTA program, make sure your passport has enough validity period not to cause problems at the border.

Second, if your name in the passport is different than your name on your green card, you should have a copy of better an original of the marriage certificate showing the name change. If the name change happened as a result of court order, you should have a copy of the order with you.

Third, a valid visa is a must of course. A visa sticker and time one may be present in the US are two different things. The dates on the visa itself show only the period of time within which a person may enter the US, but it is up to the CBP officer and the type of visa one holds that would determine how long one may stay in the US. For example, a B1/B2 visa may be valid for 2 years: it means one may enter the US within this 2 years period. But the B1/2 visa allows its holder to stay in the country for no longer than 6 months at a time (provided no extension is requested).

Lastly, if a person who is coming to the US is not a green card holder, he/she will be assigned an I 94 number. Due to resent changes, the I 94 number will not longer be provided on a paper card. It is all done electronically now. One must print it out before leaving the US though, or will have to submit a FOIA request to retrieve that number after departure. Please see this page about I-94 new procedure.

If your green card expired and you need to travel to the US, visit our page for more information: http://www.shautsova.com/law-publications/lost-green-card-transportation-letter-boarding-foil.html#.UtRy9bR78w8

For more information: call law office of Alena Shautsova at 917-885-2261

Immigration To The USA, Visas

Visa Bulletin

December 13, 2013

Visa Bulletin

Author: New York Immigration attorney Alena Shautsova

January 2014 Visa Bulletin is here.

F2A category (children and spouses of permanent residents) priority date is September, 2013; EB3 category for skilled workers priority date is April, 2012.
http://www.travel.state.gov/visa/bulletin/bulletin_6228.html

Family Based:

Family-Sponsored	All Charge -ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	08DEC06	08DEC06	08DEC06	22SEP93	01JUL01
F2A	08SEP13	08SEP13	08SEP13	01SEP13	08SEP13
F2B	01JUN06	01JUN06	01JUN06	01APR94	01MAY03
F3	15APR03	15APR03	15APR03	01JUN93	01FEB93
F4	01OCT01	01OCT01	01OCT01	01NOV96	01JUL90

Employment Based:

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	08DEC08	15NOV04	C	C
3rd	01APR12	01APR12	01SEP03	01APR12	15FEB07
Other Workers	01APR12	01APR12	01SEP03	01APR12	15FEB07
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted Employment Areas/ Regional Centers and Pilot Programs	C	C	C	C	C

Visas

Waivers Of Inadmissibility

August 16, 2013

Waivers Of Inadmissibility: Permission to Come or Stay in the US

Author: New York Immigration attorney Alena Shautsova

Waivers of inadmissibility are applications that should be submitted to USCIS in order to perceive a permission to come or stay in the US after the violation of Immigration laws. There are different kinds of waivers for different kinds of violations. For example, some waiver, if granted, excuse the existence of criminal convictions; some excuse immigration misrepresentation/fraud; some excuse unlawful presence; etc.

All waivers can be divided into two big category: those that waive some condition with an immigrant visa/permanent residency application; and those that waive a condition for a non-immigrant visa application.
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