basic immigration law 2015 -...

© Practising Law Institute

CORPORATE LAW AND PRACTICECourse Handbook Series

Number B-2159

Basic Immigration Law

2015

ChairCyrus D. Mehta

To order this book, call (800) 260-4PLI or fax us at (800) 321-0093. Ask ourCustomer Service Department Dept. BAV5.

Practising Law Institute1177 Avenue of the Americas

New York, New York 10036

NEW YORK PRACTICE SKILLSCourse Handbook Series

Number F-258


12

Immigrant Visa Processing and Adjustment of Status

Deborah J. Notkin

Barst Mukamal & Kleiner, LLP

If you find this article helpful, you can learn more about the subject by going to www.pli.edu to view the on demand program or segment for which it was written.

367


368


3

BIOGRAPHICAL INFORMATION

Ms. Notkin is a highly experienced attorney in the fields of business immigration and labor certification and a Partner at Barst Mukamal & Kleiner, LLP. She is a recent past President of the American Immigration Lawyers Association (AILA) and a past chairperson of AILA’s New York Chapter. She is a frequent author and lecturer before special groups including the Practicing Law Institute (P.L.I.) and the American Immigration Lawyers Association. Currently, she is the National Chairperson of AILA’s Media Advocacy Committee.

369


370


5

Permanent resident status is obtained either through issuance of an immigrant visa at a US Consulate abroad or through an adjustment of status application filed in the United States at the U.S. Citizenship and Immigration Services (USCIS) within the Department. Many aliens phys-ically present in the United States have both alternatives available and have to balance the advantages and disadvantages of both options. In some cases, adjustment of status is not legally possible. In other cases, adjustment of status under Section 245(i) of the Immigration and Nationality Act (INA) is mandatory to avoid triggering the three or ten year bars on reentering the US based on accrual of certain periods of unlawful presence.

Before an application for permanent residence can be made, eligibility for US permanent residence must be demonstrated. An alien is eligible for US permanent residence if: 1. The alien is the beneficiary of an approved family or employment

based visa petition. With the exception of immediate relatives of U.S. citizens (i.e. parents, spouses and unmarried children under 21), the other immigrant visa categories are subject to numerical limita-tions based on the date of filing of the underlying immigrant visa petition or required application. INA §203(a). The current priority dates for each immigrant visa category can be checked at the Department of State’s visa bulletin website at www.travel.state. gov/visa/frvi/bulletin_1360.html;

2. The alien is a derivative family member (spouses and unmarried children under 21 of preference aliens);

3. The alien qualifies for special immigrant status under INA §101(a)(27); or

4. The alien qualifies for US permanent residence under special legislation such as the Diversity Visa Lottery. INA § 203(c).

In addition to those categories listed above, the INA contains other special statutory provisions that permit adjustment of status for aliens physically present in the US. Some of these provisions include: 1. Section 202 and 203 of the Nicaraguan Adjustment and Central

American Relief Act; 2. Asylees and Refugees physically present in refugee status in the US

for one year. INA § 209(a); 3. Battered Spouses or Children under the Violence Against Women

Act of 1994. INA §204(a);

371


6

4. Registry for individuals residing continuously in the US prior to January 1, 1972. INA § 249;

5. Special Immigrant Juvenile for certain abandoned or abused alien juveniles declared dependent on a juvenile court within the US. INA § 101(a)(27)(J).

CONSULAR PROCESSING

Normally, consular processing requires returning to the country of the alien’s nationality or last residence. 22 CFR §42.61(a). In limited cir-cumstances such as an absence of consular services in the individual’s home country or the individual’s inability or unwillingness to return to the home country, a third country consulate can be designated for an immigrant visa appointment. (See generally, 9 FAM § 42.61.) Where no consular post is open, the State Department frequently designates third country posts for immigrant visa processing. Aliens planning to apply for an immigrant visa in a third country must qualify for admission under the visa regulations of the third country. A list of current countries with no immigrant visa issuing posts can be found at 9 FAM § 42.61.

Procedure

The forms required for family and employment based visa petitions provide the beneficiary and petitioner the ability to choose between adjustment of status in the US or consular processing abroad. If consular processing is requested, a specific post must be des-ignated. When the beneficiary is not certain at the time of the filing of the visa petition whether to adjust or consular process, consular pro-cessing should be indicated. This approach saves time. The beneficiary may still opt to adjust status with no delay, even if the file has been transferred to the National Visa Center (NVC) for consular processing. Conversely, if the petition indicates that the beneficiary will adjust status in the US, the file will be retained by USCIS. If the beneficiary ultimately decides to consular process, Form I-824 must be filed with the USCIS to request a transfer of the file to the National Visa Center. The stated processing time goals for Form I-824 are six months across the board at all the USCIS Service Centers. Please note, however, that the actual processing time may vary Service Center to Service Center and on a case-by-case basis.

When the file is received at NVC, it will be entered into the NVC system and assigned a case number. The NVC will send the

372


7

beneficiary or the representing attorney an invoice to pay the immigrant visa fee by email. The fee is currently $230 for family based immigrant visa applications and $345 for employment based immigrant visa applications. The NVC will also send the petitioner or the attorney an invoice for the Affidavit of Support Fee, where required. This fee is currently $88. The fees must be paid online through a checking account where the routing number and account number must be provided. It takes about 1-2 days for the payment to clear and the NVC will allow the applicant to prepare a DS-260 online where it will be electronically submitted and then supporting documents will be submitted to the National Visa Center in Ports-mouth, New Hampshire.

The next step is to submit supporting documentation to the National Visa Center. A breakdown of the documents that must be submitted can be found at http://travel.state.gov/content/visas/english/ immigrate/immigrant-process/documents/Supporting_documents. html. Additionally, after payment of the immigrant visa application fees online, cover pages for submission of the supporting documents will be made available online. These cover sheets are important to use because they contain a bar-code which will be scanned by the NVC upon receipt of the package.

For most countries, a security police clearance certificate of each applicant 16 must be obtained from any country in which the applicant resided for more than six months. It is important that all the required documentation be available for the interview. Lack of documentary requirements can result in lengthy delays of visa issuance or even result in denials.

The following documents are generally required: 1. A passport which is valid for at least six months following the

date of visa issuance 2. Birth Certificates for each visa applicant. If unavailable, other

evidence such as religious school records or affidavits must be provided.

3. Police Certificates - Each applicant 16 or over is required to obtain a police certificate from the country of nationality or current residence where the applicant has resided for at least six months since reaching the age of 16 and from other countries where the applicant has resided for at least one year. If the consul has reason to believe a police record exists, the consul can request a police certificate from that country, irrespective of the duration of

373


8

residence. The applicant is responsible for obtaining the police clearance. In some countries, the certificate can only be obtained by the local US consulate. See 22 CFR § 42.65(c).

4. Military Service records are required if an applicant has served in a military body.

5. Marriage certificates and divorce certificates, where applicable, must be submitted.

6. Court and prison records are required if the alien has been subject to criminal prosecution and/or conviction.

7. Photographs (usually 2) pursuant to specific instructions contained in the instruction packet or available on the Department of State’s website must be submitted. Some posts may require more photos.

8. Evidence of Financial Support is required to show that the alien will not become a public charge. For employment based immi-grants, this documentation is typically a letter offering permanent employment, bank statements, tax returns and/or ownership of substantial assets. Family based applicants and employment based cases where the petitioner is related to the alien and has a significant ownership interest in the petitioning employer must submit an affidavit of support (Form I-864). The Department of State will collect an $88 fee to process an I-864 in cases which designate the NVC to receive the I-864.

9. Translations - Documents in foreign languages must be accom-panied by a certified translation. Many posts will accept docu-ments without translation if the language is native to the country where the post is located.

The Interview Packet and Interview

Once all the required documentation has been received by the NVC, either the NVC or the consulate will obtain an immigrant visa number from the Department of State and forward the Interview Packet to the applicant and/or attorney of record. This Packet includes the appointment letter, breakdown of submission of documents and missing documents, and instructions for a medical examination.

Eligibility for an immigrant visa is decided at the time of the interview. The visa applicants will usually be questioned to establish whether any grounds of admissibility under INA § 212(a) are present.

374


9

Once an immigrant visa is issued, an applicant must enter the US within six months. One exception is a derivative child who is close to becoming 21. That child must enter the US before the 21st birthday unless the child’s immigrant visa protected under the Child Status Protection Act (CSPA) which is beyond the scope of the article.

An immigrant visa can be legally refused only upon grounds set forth in the statutes or regulations. The consul is required to give the applicant written notice of the basis of denial and state any provisions which allow for overcoming the grounds of ineligibility.

If the grounds of ineligibility allow for the filing of a waiver, the visa applicant can file the waiver only after the visa interview. The application is adjudicated with USCIS in the United States. Occasion-ally, a visa refusal can be overcome by additional documentation and explanation. An attorney can often help at this stage by clarifying the issues, speaking with the consular officer and assisting the applicant in overcoming the grounds of denial.

While a denial of a visa is generally non-reviewable in an appellate body in the US, the Department of State’s visa office maintains a visa review board which will review denials where a credible claim of consular error can be made.

After issuance of the immigrant visa, applicants are now required to pay a $165 ELIS fee to USCIS online. The fee can only be paid after the immigrant visa is received by the applicant because the alien registration number is printed on the visa and is needed to pay the fee. Payment of this fee must be made before the applicant’s green card can be generated in the United States and sent to the applicant.

ADJUSTMENT OF STATUS

Some aliens physically present in the US can become lawful permanent residents by applying for adjustment of status in the US instead of going to an American Consulate abroad for an immigrant visa appointment.

Not everyone is eligible to adjust status in the US. Requirements for adjustment of status are found at Title II, Chapter V of the Immigration and Nationality Act.

Section 245 of the INA provides for adjustment of status for many aliens who have maintained valid non-immigrant status in the US and have not engaged in unauthorized employment. INA § 245 bars adjustment of status for the following individuals: 1. Foreign National Crewman;

375


10

2. Transits without visas (Aliens traveling in transit through the US to a foreign destination.).

3. Aliens who entered the US under the visa waiver program pursuant to 8 CFR § 212(i) and conditional resident investors under INA § 216A may not adjust status unless they are immediately relatives of US citizens.

4. Unauthorized Employment - Aliens who have engaged in unauthor-ized employment on or after Jan. 1, 1977 cannot adjust status. Immediate relatives and special immigrants defined at INA § 101(a)(27)(H),(I),(J) or (K) are exempted from this bar. Also exempted are certain employment based immigrants. Under INA 245(k), employment based immigrants pursuant to INA § 203(b) (1),(2),(3) or (4) are able to adjust status if they have unauthorized employment and/or a lapse of status for less than 180 days prior to the filing of an adjustment of status application.

5. Failure to maintain legal status in the US, including violations on prior visits to the US, will render most aliens ineligible for adjustment of status under INA § 245. Immediate relatives are exempted from this requirement.

INA Section 245(i)

This section of the INA allows certain aliens otherwise ineligible, to adjust status in the US. Eligible aliens are those for whom family petitions or employment based applications or petitions were filed by January 14, 1998. The Legal Immigration and Family Equity Act of 2000 (Life Act) extended the cutoff date for eligibility to April 30, 2001, but added a requirement of physical presence in the US on December 20, 2000 for applications and petitions filed after Jan. 14, 1998 but on or before April 30, 2001. To benefit from this provision, applicants must pay a penalty fee of $1,000 in addition to the required filing fees for an adjustment of status application unless the applicant is under 14 years of age.

Employment Authorization and Advance Parole

Adjustment of status applicants are given the privilege of obtain-ing open market employment authorization and permission to travel concurrent with the filing of an adjustment of status of application.

376


11

USCIS will grant employment authorization documents (EAD) in one or two year increments at their discretion. They are typically issuing two year EADs in situations where is it anticipated that visa category backlogs will delay a grant of permanent residence for a substantial period of time. Previously, applications for adjust-ment of status frequently took over one year to process. Recently, there has been a dramatic decrease in the processing time of most adjustment of status applications. USCIS has a stated 6 month processing goal time for these types of applications, and it is not uncommon to see certain family based applications adjudicated in less time. However, in practice the processing times for certain types of cases generally still take longer than six months, though this is typically due to quota backlogs rather than the security check clearance backlogs that were common until recently.

Applicants must keep track of the expiration date of their EAD and apply for renewals at least 90 days before expiration of the current EAD. Renewal applications are filed at the USCIS Phoenix or Dallas Lockbox, or the office with jurisdiction over the appli-cation for adjustment of status (check the USCIS website and Form I-765 instructions for updates on filing locations, as filing locations are subject to change).

Advance parole documents allow aliens to travel abroad during the pendency of an adjustment of status application. Aliens holding valid, un-expired H and L visas who have maintained valid status in the US can travel without an advance parole document. Adjust-ment of status applicants who travel abroad without an advance parole document or without a valid H or L visa are deemed to have abandoned the adjustment application and will be required to re-apply for adjustment.

Filing an adjustment of status application

An adjustment of status package typically requires the following documentation: 1. USCIS Form I-485; 2. Supplement A to Form I-485 for 245(i) applicants; 3. USCIS Biographic Form G-325A (for applicants 14 and over); 4. 6 USCIS style photos (2 inches by 2 inches, white background,

head facing forward);

377


12

5. USCIS Medical Form I-693 and Supplement (At some INS district offices, the medical is not to be submitted at the time of filing because processing time takes longer than one year. Check local rules);

6. Notice of petition approval from USCIS (Immediate Relatives and certain employment based applicants can file the I-130 or I-140 petition along with the I-485 application instead of waiting for petition approval);

7. Copies of applicant’s passport, Form I-94 and all status docu-ments such as Form I-797, I-20’s, DS-2019 where applicable;

8. Copies of birth, marriage and divorce certificates (certified trans-lations must be submitted for foreign language documents);

9. Evidence of financial means of support. For employment based cases, this is usually a letter confirming an offer of permanent employment. For family cases and a few employment cases men-tioned above, an affidavit of support, Form I-864, is required. Other documentation establishing that the applicant(s) will not become public charges include bank statements, tax filings and other evidence of assets;

10. Employment authorization application, Form I-765; 11. Advance Parole application, Form I-131, with photographs (this

application should not be filed for applicants subject to the three or ten year bars.);

12. USCIS applicable filing fees. Filing fees are subject to change and should be confirmed prior to filing.

Jurisdiction

Before filing an application for adjustment of status, the correct address for filing should always be checked at www.uscis.gov. Adjust-ment of status applications based upon family based petitions and registry are filed with the National Benefits Center through the Chicago Lockbox. Employment based applications that are filed concurrently with the I-140 petition, except for Skilled Worker petitions, may be filed together at the USCIS Dallas Lockbox facility. Employment based applications for Skilled Worker applicants currently must be mailed to either USCIS Nebraska Service Center or USCIS Texas Service Center. The USCIS website has a list of which states get sent to each service center. Asylee or refugee applications,

378


13

and applications based on an approved I-526 petition for alien entrepreneur are filed with either the Phoenix or Dallas Lockbox, depending on where the applicant resides. Applicants and immigra-tion practitioners should consult the USCIS website frequently for any changes in filing procedures as the bi-specialization process is further announced and implemented. If an applicant, other than an arriving alien, is in removal proceedings, but nevertheless eligible for adjustment of status, jurisdiction is with the Immigration Judge.

ADJUSTMENT OF STATUS VS. CONSULAR PROCESSING

Many aliens present in the US are eligible to adjust status and conse-quently must choose between consular processing and adjustment of status. The main advantage of consular processing is the timeframe involved in adjudication. Consular processing is generally quicker and usually takes less than one year to complete. The USCIS District Office and Service Centers have varying backlogs on 245 adjustments. Although USCIS has announced a 6 month processing time goal for most if not all petitions and applications, in practice 245 adjudication times still vary from place to place especially in light of security check processing delays.

For applicants who would be subject to the three and ten year bars upon departure from the United States, 245(i) is the only advisable choice.

If the applicant is subject to another ground of inadmissibility under INA § 212(a), for which a waiver is available, it is generally much easier to adjudicate the waiver while the applicant is in the US with a pending adjustment application rather than have the applicant stuck abroad while a waiver is pending. In addition, the possibility of appeals and judicial review exists with a pending adjustment application in the United States. There is no right of review in a consular matter.

Document availability is another issue, particularly as it relates to foreign police clearances. Foreign police clearances are normally required only for consular processing. If a foreign national has lived in many countries for a substantial period of time, obtaining police clearances from every country, especially those from which they have no present connection, can be difficult and delay the immigrant visa processing substantially.

The filing of an adjustment of status application provides a status bridge between non-immigrant status and permanent residence. The preparation of an immigrant visa application at an American Consulate abroad provides no status other than the nonimmigrant status presently being maintained by the foreign national in the United States. To avoid

379


14

incurring the three and ten year bars, immigrant visa applicants in the US must be vigilant to maintain an un-expired, valid visa status.

On balance, with the exception of timeframe considerations, the safeguards attached to adjusting status in the US frequently make it the most attractive option in obtaining US permanent residence.

380


NOTES

381


NOTES

382