Visa Lawyer Blog

Articles Posted in Adjustment of Status

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For this blog we are answering 5 questions we have recently received through our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office for a free legal consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust and interest in our law office.

Change of Status B-2 to F-1

Q: I need advice regarding my change of status. I am currently in the United States on a B-2 tourist visa. I have filed a change of status application to change my status to F-1 student. My B-2 duration of stay will expire today and my change of status application to F-1 student is still pending with USCIS. I informed my school that I will be postponing my classes and was notified that I need to file a new I-20 and provide some missing information. I have time to make adjustments to my application but I would like to know the steps to correct any missing information. I also wanted to know if I need to leave the United States immediately since my F-1 application is still pending. Please assist.

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The U.S. Citizenship and Immigration Services (USCIS) has released an updated policy manual addressing the policies and procedures associated with adjustment of status to lawful permanent residence under section 245a of the Immigration and Nationality Act. The policies set forth in the newly updated policy manual are effective beginning February 25, 2016.

Adjustment of status is the process by which an eligible foreign national may adjust their status to lawful permanent resident, based on a qualifying family relationship or employer-employee relationship. Additionally, special categories of green card applicants exist covering self-petitioning Amerasian, Widow(ers) seeking lawful permanent residence under the Violence Against Women Act (VAWA), refugees, asylees, certain U visa holders, humanitarian visa holders, and eligible diversity visa program immigrants. In order to file an adjustment of status application from within the United States the Beneficiary must 1) be living in the United States lawfully and 2) have been inspected, lawfully admitted, or paroled into the United States, (except in cases of 245i).

Foreign nationals living in the United States, who qualify for adjustment of status to lawful permanent residence, may file their adjustment of status application with USCIS, without having to travel abroad to obtain an immigrant visa through a procedure known as consular processing. Foreign nationals residing abroad, who qualify for adjustment of status, must apply for an immigrant visa at a United States Embassy or Consulate abroad. Consular processing is different from adjustment of status from within the United States in various ways. Adjustment of status within the United States is a much faster process, however the main drawback is that applicants cannot travel internationally once their application has been filed with USCIS, until they are issued an advance parole document by USCIS authorizing such travel. In order to obtain an advance parole document, the green card applicant must file Form I-131 with USCIS. The advance parole document is typically issued within 90 days of filing of Form I-131. One of the main benefits of applying for an immigrant visa abroad through consular processing, is that the individual does not have any travel restrictions. It is for this reason that businesspersons and other individuals opt for consular processing instead of adjustment of status despite living in the United States.

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For this series, we bring you our top tips for filing the perfect family-based adjustment of status application (I-130/485), as well as valuable tips concerning common mistakes to avoid when filing the adjustment of status application, from our in-house family-based legal assistant, Ms. Reagan Volkman. Ms. Volkman has worked with hundreds of clients from all over the world helping them file their adjustment of status packages from beginning to end. With her hard work and dedication, our office has enjoyed an unprecedented approval rate for these petitions.

Tip #1 Ensure accuracy on every form associated with the I-130/485, especially in regards to questions relating to criminal history and/or immigration violations

  • Double check every form to ensure that you have completed each form as thoroughly and accurately as possible, making sure all dates and social security numbers are correct.

REMEMBER: Dates should be written in the (mm/dd/yyyy) format unless otherwise stated on each form;

  • If information is unavailable/not applicable, note such on each form;
  • Review all the yes and no questions listed on pages 3-5 of form I-485. Be very careful when answering these questions and thoroughly explain any “yes” answers. These questions relate to criminal history and immigration violations (such as fraud, willful representation, or removal from the United States);
  • It is strongly advised that you seek counsel from an accredited attorney if you have any criminal history and/or have committed any immigration violations, as these issues may require you to file a waiver before seeking adjustment of status, or make you inadmissible;
  • If you have served in the military in any foreign country and/or have military training you must answer “yes” and provide the relevant information requested. For countries that require military enlistment we recommend to note that the service was ‘mandatory’ in the description;
  • If you have held a J-1 visa in the past, and have been subject to the two-year foreign residence requirement, but did not obtain a waiver, you must answer “yes” and provide the relevant information requested;

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On Thursday, December 31, 2015 the Department of Homeland Security published a new proposed rule affecting highly skilled immigrant and non-immigrant workers alike. The proposed rule, introduced in last week’s federal register, aims to improve the ability of American employers to hire and retain highly skilled workers waiting to receive their employment-based lawful permanent residence in the visa bulletin backlogs. Additionally, the proposed rule aims to enhance opportunities for such workers allowing them to be more easily promoted, to accept lateral positions with their current employers, change employers, and pursue other employment. While the proposed rule is not groundbreaking, it does address important challenges employers and their highly skilled workers have faced as the law stands today and makes recommendations for such relief. The proposed rule will be open for comment until February 29, 2016.

You may remember that on November 20, 2014 the President highlighted, as part of his executive actions on immigration, that the employment-based immigration system needed to be amended to modernize, improve, and clarify immigrant and nonimmigrant visa programs in order to create more jobs, foster innovation at home, retain a highly skilled workforce that would allow the United States to compete with other countries, and to stimulate the American economy overall.  In order to modernize the employment based immigration system, USCIS would be required to work with the Department of State to modernize and simplify the immigrant visa allocation process. Part of this process would require the Department of State to make reasoned projections of employment-based immigrant visa availability on the visa bulletin, that could be relied upon by employers and their highly skilled workers.

Presently, immigrant workers from India and China are experiencing extraordinary delays in the employment-based queue for permanent residence, while other highly skilled workers are forced to wait over a five-year period to receive company sponsorship and lawful permanent residence. Furthermore, such workers are forced to remain on temporary employment-sponsored visas in the United States while waiting for an immigrant visa to become available to them. This puts the immigrant worker in a predicament giving the employer the upper hand, while restricting the employee from seeking advancement and discouraging new employment, since this would require the employer to file a new petition and incur the expensive fees required for filing. Highly skilled works facing extortionate delays in the visa backlogs have experienced hindered employer/employee career advancement and job mobility. The new rules will provide limited relief in this area.

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Tashfeen Malik, a Pakistani citizen, and her husband Syed Rizwan Farook, a naturalized United States Citizen, are known globally as the couple behind the San Bernardino shootings, which took the lives of 14 people and left 21 injured. Twenty-eight-year-old Syed Farook was identified as an environmental health services inspector employed by the San Bernardino County Department of Public Health. He was attending a holiday party at the Inland Regional Center where he worked. Reports confirm that a dispute occurred between Syed and an attendee of the party causing Syed to leave the party. He later returned with his wife Tashfeen dressed in tactical gear carrying assault weapons and semi-automatic pistols. Days after the attack, it became known that the assault was inspired but not directed by the Islamic State of Iraq and the Levant (ISIL), the terrorist group which claimed responsibility for coordinated attacks that occurred in Paris just last month. Through a radio message disbursed online, ISIL confirmed that the duo were indeed supporters of the group praising them for their efforts, but stopping short of taking credit for the attack. The FBI has since confirmed that the couple had been ‘radicalized’ for some time before the actual attack took place, though it is not clear how the couple became radicalized, how they rehearsed the attack, and whether the couple maintained ties to any other terrorist organizations. It is known that Syed and his wife Tashfeen had visited gun ranges in the Los Angeles area for target practice just days before the December 2nd assault at the Inland Regional Center, a social services facility located in San Bernardino, California where Syed was employed.

Investigations have revealed that Syed and Tashfeen met one another on a Muslim dating site a couple of years ago. The relationship flourished, and eventually Tashfeen Malik obtained and entered the United States legally on a K-1 fiancé visa. Last year, Tashfeen became a United States lawful permanent resident through her marriage to Syed, a naturalized citizen. In response to the recent terror attacks around the world and the Syrian refugee crisis, President Obama delivered a rare address to the nation from the Oval Office yesterday evening declaring the San Bernardino massacre an “act of terrorism designed to kill innocent people.”

In his address, President Obama outlined his administration’s four-tier strategy to defeat ISIL and discussed necessary measures that must be taken by Congress to bring about legislation that will protect our country from extremism and combat the war on terror. Such measures include the following:

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It is our pleasure to introduce our readers to our esteemed Paralegal and Case Manager Katie Foley who has worked at the Law Offices of Jacob J. Sapochnick since 2010. Ms. Foley, originally from Santa Cruz, California holds a Bachelor’s Degree in Liberal Studies from Cal State East Bay and her paralegal certificate from San Diego Miramar College. Throughout her career, Katie Foley has assisted our attorneys with various different types of immigration petitions including family-based petitions, employment based petitions (H-1B, E-2 etc.), deferred action, marriage visas, I-751 petitions, fiancé visas, consular processing, naturalization, temporary visas (B-1/B-2, J-1, F-1 etc), deportation and removal cases.  She has successfully processed hundreds of applications and in the process has formed long standing relationships with our clients. In her role as case manager, she assists our legal assistants with their case loads and provides direction as needed. Ms. Foley is an outstanding member of our firm for her impressive attention to detail, her understanding of the law, and the extensive guidance she provides our clients to ensure every case has a successful outcome. She provides all of our client’s strong personal support and comprehensive step-by-step instructions for each immigration process. If you are an international or out of state client, not to worry, Ms. Foley has perfected an easy online case processing system to assist clients with their immigration concerns no matter where they reside. In her free time, she enjoys lap swimming, barbecues, and gardening. To read more about Ms. Foley please click here.

For immigration questions please call our office. Your Immigration is our Passion.

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The December visa bulletin was recently released by the DOS on November 9, 2015. For the month of December CIS has announced that family based applicants must use the ‘date of filing’ chart to determine when their adjustment of status applications may be filed. This means that for family based preference categories, there are presently immigrant visas available and demand has not yet been met for the fiscal year. Employment based applicants must refer to the ‘final action date’ chart as a basis for applying for adjustment of status. This means that presently there is more demand than immigrant visas available for employment based categories. For the month of December, filing dates have remained unchanged. The impact of the dual chart system will not be felt until CIS requests visa numbers from the DOS in April 2016 for adjustment of status filings based on the October Visa Bulletin. In this post we will discuss new announcements that have appeared on the December visa bulletin and projections for EB-2 India, EB-2 and EB-3 China, F-2A, and F-2B. These projections are based on guidance provided by the Chief of the Visa Control and Reporting Division, Charles Oppenheim. While they do not guarantee actual immigrant visa availability, these projections are helpful reference points.

Replacement of Foreign Affairs Manual (FAM) and New Visa Waiting List

The December visa bulletin has announced that the Foreign Affairs Manual (FAM) used internally by the Department of States will be replaced with 9 FAM-e beginning November 18, 2015. Public release of the new FAM has not yet been announced.

Additionally, a ‘Visa Waiting List’ will be released beginning with the January Visa Bulletin which will provide applicants information on the National Visa Center waiting list starting November 1, 2015.

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In this blog we are answering 5 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office for a free legal consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office.

Qualifying for 245i and Adjustment of Status

Q: My ex-husband filed an adjustment of status application on my behalf based on 245i. We separated before we received our initial interview appointment and later divorced. I have since remarried. Can my husband apply for my permanent residence now that we are married?

A: Thank you for your question. Certain individuals who have a qualifying relative willing to file an immigrant visa petition on their behalf, are eligible to adjust their status under 245i Immigration and Nationality Act if they entered the country without inspection (unlawfully) and were the beneficiary of a visa petition or application for labor certification filed on specific dates outline below. Before proceeding with a new green card application, you should make sure you qualify for 245i and have all of the necessary documents to prove your eligibility. 245i applicants must provide documented evidence of their physical presence in the United States and evidence that the visa petition or application for labor certification was filed on their behalf by providing the receipt notice of the petition also known as the I-797 Notice of Action.

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Secretary of Homeland Security Jeh Johnson

On October 28, 2015 sixteen Democrats from the House of Representatives including —Zoe Lofgren, Michael M. Honda, Judy Chu, Katherine M. Clark, Elijah E. Cummings, Anna G. Eshoo, Tulsi Gabbard, Luis V. Gutierrez, James A. Himes, Ruben Hinojosa, Eddie B. Johnson, James P. McGovern, Frank Pallone Jr., Jared Polis, David E. Price, and Alma S. Adams — issued a letter addressed to the Secretary of Homeland Security, Jeh Johnson concerning drastic revisions made to the Visa Bulletin on September 25, 2015.

In the letter, House Democrats argue that the revisions to the Visa Bulletin have compromised the integrity of the immigrant visa process, and resulted in a lose of faith in our immigration system. More over they argue that these revisions have adversely impacted the lives of thousands of immigrants, the American businesses who employ highly skilled workers, and our economy which benefits from retaining highly skilled workers.

As previously reported, the Department of State had published a dual chart system on September 9, 2015 with the addition of a new ‘date of filing chart’ which first appeared on the October Visa Bulletin. This new ‘date of filing’ chart was implemented in an effort to modernize and streamline the immigration process, as part of President Obama’s executive actions on immigration reform.

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It is our pleasure to introduce our incredibly skilled operations manager and immigration consultant, Lupe Lopez. If you have called or stopped by our San Diego office for a consultation, chances are you have already met with her to discuss your needs. Throughout her immigration career, Ms. Lopez has assisted thousands of clients with their immigration concerns. There is no situation or immigration story she hasn’t heard and no shortage of extraordinarily challenging cases she has assisted with. Her compassion and empathy working with clients who have faced family separation and other adversities is unmatched.

Ms. Lopez holds over 12 years of experience in the field of immigration legal services. Her expertise includes filing waivers of inadmissibility, I-360 VAWA petitions, removal proceedings, nonimmigrant waivers, business, investment, and family immigration petitions. Ms. Lopez possesses a B.S. in Human Resource Management and a Certificate in Labor Relations. She is currently in the process of becoming Dale Carnegie certified. Aside from serving as an immigration consultant, Ms. Lopez is also our Operations Manager, ensuring that we deliver the highest level of customer service with proven results. She helps train, organize, and improve our operations systems which allow us to gain the customer trust, loyalty, and satisfaction. In her capacity as operations manager, she addresses both internal concerns and client concerns keeping our standards for excellence above our competitors.

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