Visa Lawyer Blog

Articles Posted in Consulates

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Our clients often ask us what the difference is between adjusting their status within the United States versus applying for a green card at a United States consulate abroad. In order to adjust your status to permanent resident within the United States by filing Form I-485, you and your spouse must be living inside of the United States at the time of filing. The intending immigrant must also have entered the United States legally in order to adjust status within the United States, although there are few exceptions (as is the case of individuals who qualify for 245i). This means that generally, in order to qualify for adjustment of status, you must have been inspected by a U.S. Customs official at a United States port of entry. As part of the Adjustment of status process, the green card applicant must be able to prove that they were inspected upon entry by showing their I-94 arrival/departure record. The I-94 is a small white paper that is placed in the passport containing a stamp of admission with the date of entry, place of entry, the person’s name, I-94 number, and other important details.

I-94A

Sample I-94 arrival/departure record

If you did not receive a paper I-94 in your passport, you may obtain your I-94 electronically by visiting the DHS website.

Consular processing on the other hand is an option that is typically utilized for spouses of US Citizens residing abroad and/or foreign spouses who have never visited the United States, do not have a United States visa, or cannot obtain one, because they are already married to a US Citizen. Foreign spouses who are obligated to travel frequently such as businesspersons may also prefer to obtain an immigrant visa through ‘consular processing’ because this process does not prohibit international travel. Adjustment of status applicants on the other hand are prohibited from traveling internationally once the I-485 green card application has been filed, unless they have received travel permission from USCIS known as an advance parole document. If the applicant travels without this advance parole document, the I-485 application will be considered abandoned.

Advance Parole for Adjustment of Status Applicants

In order to receive this advance parole document, the applicant must file Form, I-131 Application for Travel Document at the same time as Form, I-485 in order to return to the United States after temporary foreign travel. If the applicant wishes to apply for a work permit they must also file Form, I-765 Application for Employment Authorization. There is no additional fee for the I-131,765 applications if the applicant has a pending I-485 application with USCIS. The I-131,765 applications take approximately 90 days to process from date of filing and culminate in a travel/work permit combo card known as the EAD (Employment Authorization Document). This document allows the applicant to work, travel, obtain a SSN number, and driver’s license. Consular Processing applicants do not receive any travel or employment authorization and cannot obtain a driver’s license or SSN until they have received their green card once they enter the United States with an immigrant visa.

Adjustment of Status Benefits

There are many benefits that come with adjusting your status within the United States however to qualify you and your spouse must be living in the United States and you must have been inspected upon entry to the United States (with few exceptions), otherwise you are not eligible to apply for adjustment of status within the United States. If you have committed any immigration violations or have a serious criminal history, you must consult an attorney.

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3704180135_8cf17fa711_zA new settlement reached against the state of Texas will make it easier for undocumented parents of U.S. Citizens to obtain birth certificates for their American born children. In 2013, Nancy Hernandez, a Mexican immigrant, gave birth to a baby girl in a Texas hospital, although she was unlawfully present in the United States. After the birth, she visited a Texas county office to obtain the child’s birth certificate. Much to her surprise her request was met with resistance when county officials notified her that without presentation of proper documents, she would not be able to obtain her child’s birth certificate proving the child’s U.S. Citizenship.

In response, Hernandez along with dozens of other immigrants, filed a lawsuit against the state of Texas alleging that the state was blocking them from obtaining their children’s birth certificates, a right that is protected by the Constitution. Texas officials had previously outlined specific documents that undocumented parents needed to present, in order to obtain their children’s birth certificates.

Last week, Texas settled the lawsuit promising that the state would expand the list of documents parents were required to present in order to obtain their children’s birth certificates. Under the settlement, Mexican immigrants will be able to present a Mexican voter identification card to obtain their children’s birth certificates. These voter identification cards can be obtained from Mexican consulates in the United States. Parents from El Salvador, Guatemala, and Honduras, will be able to present documents certified by their consulates in the United States.

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Before filing your green card application, it is important for you to carefully consider several important factors that may limit your ability to obtain employment in the United States and restrict your international travel. If you will be filing your green card application in the near future, you need to be prepared to remain in the United States for a period of at least 90 days, from the date of filing of your green card application. Applicants must also be aware that they will not receive authorization to work in the United States until this 90-day period has passed. Limited exceptions exist which may allow an applicant to expedite the adjudication process of the employment and travel authorization applications which we will discuss below.

Why the 90-day restriction period?

As part of the green card application, the applicant may file the I-765 Application for Employment Authorization and the I-131 Application for Travel Document at no additional cost. The I-765 and I-131 applications result in the issuance of a one-year temporary employment and international travel authorization card (EAD), while the green card application is being adjudicated by USCIS. It takes on average 90 days for the EAD card to be issued, from the date of filing of the green card application. This ultimately means that once you apply for permanent residence, you will not be able to seek employment or travel outside of the country until the EAD card is issued to you within 90 days. Once the green card application has been filed with USCIS, the applicant is restricted from any international travel. If the applicant travels without authorization, USCIS will consider the applicant’s green card application ‘abandoned.’ An applicant may only travel internationally if they have received a re-entry permit issued by USCIS known as an ‘advance parole’ document. The ‘advance parole’ notice will appear on the front of the EAD card itself signifying that the applicant is authorized to travel internationally using the card.  The ability to re-enter the United States after returning from temporary foreign travel is ‘discretionary.’ This means that even if you have been issued an EAD card that allows you to travel, it will ultimately be up to the customs official to admit you into the United States.

Consider the alternatives

Before applying for your green card you should carefully consider whether these travel and employment restrictions will have a significant impact on your lifestyle. If the travel restrictions are concerning to you, it may be a more beneficial option for you to apply for an immigrant visa from a U.S. Consulate abroad. There are no travel restrictions for applicants who apply for immigration benefits from abroad. Likewise, if you are concerned that you will not receive employment authorization immediately, it may be worth considering applying for a dual intent work visa first to cover any gaps in employment. There are limited work visa categories that allow for dual intent, or the intent to have a temporary visa status at the same time as having the intent to remain permanently in the United States. If this is the case, you should consult with an attorney to discuss your options.

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If you have filed your green card application with USCIS, you are probably asking yourself whether you can travel internationally (yes we mean Mexico too) while your application is in process. After all, filing the green card application is admittedly a stressful process for both the applicant and petitioner. Accomplishing this achievement is worth celebrating.  To reward yourself you may be aching to celebrate your newfound immigration status by going on holiday or taking that important business trip you and your business partners have been discussing.

Travel Authorization for Re-entry

Not so fast!! You cannot travel internationally unless you have received a travel authorization document from USCIS, known as an advance parole document. You are required to obtain such travel authorization if you seek to re-enter the United States after temporary foreign travel. To do so, you must file Form I-131 Application for Travel Document with USCIS. For applicants filing a green card application based on their marriage to a U.S. Citizen, the I-485 and I-131 application is typically filed concurrently. There is no fee for the I-131 application if it is submitted along with Form I-485. It takes approximately 90 days, from the date the I-131 application is received, for USCIS to issue this travel authorization. Once the travel authorization is received, it would no longer be worth traveling outside of the country, because applicants typically receive their “interview notice” in the mail during this time frame. The interview notice will contain the date, time, and location of the green card interview and require the applicant to be physically present in the United States. In emergency situations, it is possible to reschedule the green card interview although this will obviously delay receipt of the green card.

Emergency Expedite Requests

Although it is possible to request an expedited advance parole document in emergency situations, there are important reasons why you should not do so. Firstly, the process for expediting an advance parole document is extremely difficult. You must have a legitimate reason for making an expedite request. Attending a business conference, your best friend’s wedding, or going on your honeymoon are not legitimate reasons for making an expedite request. Even in emergency situations such as the death or serious illness of a relative, we have seen immigration officers repeatedly deny expedite requests. Secondly, you are required to be physically present in the United States in order to attend your biometrics appointment for fingerprinting (within 3-4 weeks of filing the green card application) and later to attend your in person green card interview before an immigration officer (within 3-4 months of filing your application).

Taking these factors into consideration, it is important for applicants to plan accordingly. Never make any travel commitments until you have at least received your travel authorization/advance parole document from USCIS. Keep in mind that you will be required to return to the United States in order to attend your in person green card interview. If you do not appear on your scheduled interview date your application will be denied. Do not let this happen to you.

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In this segment, we answer 4 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 to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. For more information on the services we offer please click here.

Consular Report of Birth Abroad (CRBA) and the Affidavit of Support

Q:  I am a US Citizen married to a foreign national. We have a child together. We recently moved to the United States from abroad.  My husband and son entered the United States on a B-2 visa and we are planning to apply for their adjustment of status. My question is regarding the Form I-864 Affidavit of Support. I have just secured employment and will be able to sponsor my family. I want to know what documents are required in support of the Affidavit of Support as proof that I have sufficient income to support my family. At the moment I do not have pay stubs. I plan to start my employment next month.

A: Thank you for your question. If your child was born abroad, your child may acquire U.S. Citizenship by filing for a Consular Report of Birth Abroad (CRBA, Form FS-240) before your child reaches their 18th birthday. To do so, the U.S. Citizen parent must report the birth of the child at their nearest U.S. Embassy or Consulate. Anytime that a child of a U.S. Citizen parent is born abroad, the parent must report the birth to nearest U.S. Consulate as soon as possible. This will allow the Consulate to issue a Consular Report of Birth Abroad as an official record of your child’s claim to U.S. Citizenship. The CRBA may be used as proof of your child’s U.S. Citizenship and allows the child to obtain a U.S. passport. A child with a consular report of birth abroad receives the same privileges as a child born in the United States. It is recommended that you first contact your closest U.S. embassy or Consulate before filing a petition for your son, because it is likely that you will not need to go through the immigration process for your son.

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This week USCIS announced that over 236,000 H-1B petitions were received by the agency for fiscal year 2017 (including petitions for the general cap and advanced degree exemption), compared to last year’s 233,000. Following the close of the filing period, USCIS conducted a random computer-generated lottery on April 9, 2016 beginning the selection process for the 20,000 available visas for advanced degrees first. Unselected advanced degree petitions were then placed in the lottery to fill the 65,000 general cap. Foreign workers holding an advanced degree from the United States were thus given two chances at selection. Any petitions that were not selected by USCIS will be returned along with official rejection notices, and original filing fees. This year, our office filed 15 advanced degree petitions and 40 bachelor’s cap petitions for a total of 55 H-1B petitions. Of these petitions, 46 were filed with regular processing, and 15 were filed with premium processing. The majority of these petitions were filed with the California Service Center.

As of this afternoon, we have only received 4 selection emails from the California Service Center (CSC) for advanced degree petitions filed with premium processing, and only 1 selection email for a bachelor’s cap petition filed with premium processing. We do not expect to receive any ‘receipt notices’ for petitions filed with regular processing until late April through the month of May. At this point, it does not appear that USCIS has begun cashing filing fees for selected petitions. If the filing fees for your H-1B petition have not been cashed, this does not mean that your H-1B petition was not selected. It is too early to make this conclusion. Employers should monitor their bank accounts closely within the next 2-4 weeks.

This year, USCIS received approximately 3,000 more petitions compared to last year. As in previous years, the H-1B cap was reached within the first five business days of the H-1B filing period. This year the chances of selection ran at roughly 65% for foreign workers holding a U.S. advanced degree, and roughly 35% for foreign workers holding a bachelor’s degree. Last year, the chances of being selected was about 60% for advanced degree holders, and 30% for bachelor’s degree holders.

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It is a busy time of the year for the Law Offices of Jacob J. Sapochnick, as we begin to box up and ship out the hundreds of H-1B petitions that will count toward the cap for fiscal year 2016. Tomorrow marks the very first day that H-1B petitions will begin to be accepted by USCIS. If your H-1B petition will not be received by USCIS on the very first day of the H-1B filing season (April 1st) do not fret. USCIS will continue to accept H-1B petitions through the first five business days of the filing season until the cap has been met. Receipt of your H-1B petition on April 1st does not guarantee that your application will be chosen in the randomized lottery. In fact, we have had clients file at the very last minute who have ended up being chosen in the cap. During the next few days, USCIS will carefully monitor the amount of H-1B petitions that are received and make an announcement once the cap has been met. Once the announcement has been made, no more petitions will be accepted for the lottery. Petitions received in excess of the cap will be rejected by USCIS. Employers will know that their H-1B petition has been chosen in the lottery if they receive a ‘notice of receipt’ in the weeks following the randomized selection process. Last year, receipt notices for H-1B petitions, filed without premium processing, started coming into our office in late April, while rejection notices did not appear until mid to late June. Petitioners may opt for premium processing to expedite the notification process. Although it is very easy to get lost in the chaos of H-1B season, it is important not to lose sight of what’s important this filing season.

To help ease your anxiety this H-1B season we are providing you with our last minute filing tips:

  1. Employer’s Financial Obligations: Employers must be prepared to pay their workers at least the Prevailing Wage based on the employee’s occupation and actual place of employment. Employer’s must understand their obligation to honor this financial commitment during the time the employee is working for the employer in H-1B status. Failure to do so can have serious consequences for the employer;
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Every year USCIS receives and adjudicates approximately 6 million applications from foreign nationals seeking to immigrate to the United States, and U.S. companies seeking to employ foreign workers temporarily.  According to the Department of Homeland Security’s Office of Immigration Statistics, “an estimated 13.1 million lawful permanent residents (LPRs) were living in the United States on January 1, 2013.” Of these permanent residents, more than half–8.8 million–were eligible to apply for naturalization. Additionally, the United States issues approximately 700,000 temporary non-immigrant work visas for a variety of temporary workers including: highly skilled foreign workers employed in specialty occupations in the STEM fields, fashion models, internationally acclaimed athletes and entertainers, aliens of extraordinary ability, religious workers, intra-company transferees, treaty traders/investors, foreign media workers, and agricultural and seasonal workers.

The reason the issuance of temporary worker visas is so low, when compared to the issuance of permanent resident cards, is because most of the temporary foreign worker visa programs are subject to a congressional cap, that limits the amount of non-immigrants that can be admitted per fiscal year. Additionally, certain temporary nonimmigrant worker visa classifications are granted for a specified period of time, although in most cases at least one extension may be granted. The cap applies primarily to the H nonimmigrant worker classifications, and non-minister religious workers. The H visa category accounts for approximately 54% of all visas issued for temporary workers. That is why the H visas are the most talked about visas among politicians when discussing immigration reform. The cap does not apply to treaty traders/investors, aliens of extraordinary ability, intra-company transferees, NAFTA professionals (Canada and Mexico), and foreign media workers. In comparison to developed countries, the United States admits a relatively low number of temporary foreign workers. Foreign workers are typically admitted either to fill labor shortages in the American job market, or because of their exceptional, or highly technical skills, as is the case for the H-1B visa classification.  Only highly skilled foreign nationals, aliens of extraordinary ability, aliens holding advanced degrees, high capital investors, nurses and physical therapists, doctors in undeserved area, and recipients of national interest waivers, have the unique opportunity to obtain permanent residence based on employment.

The mammoth task of meaningful immigration reform will not be easy and it will not happen overnight. The presidential nominees have failed to outline a clear strategy to overhaul our immigration system. None of the presidential candidates have addressed the most contentious areas of immigration policy that must be revised, in order to repair our broken immigration system.

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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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7468447528_3aaed1a0bd_bH-1B season is now in full swing. H-1B petitions will begin to be accepted by USCIS on April 1, 2016 for the 2017 fiscal year. Each year, foreign workers in specialty occupations compete for one of 65,000 H-1B visas allocated each fiscal year. Foreign workers with a U.S. Master’s degree or higher are exempt from the 65,000 congressionally mandated visa cap, however only the first 20,000 petitions received by USCIS may qualify for this cap exemption. Any petitions received after the 20,000 cap-exempt petitions have been allocated will count toward the regular cap. USCIS expects to receive more than 65,000 petitions during the first five business days of the application period. Once the H-1B cap has been reached, USCIS will notify the public, and begin selecting the H-1B petitions necessary to meet the cap through a randomized computer-generated lottery system. H-1B petitions that are not selected through this system will be rejected, along with any petitions received once the visa cap has closed. Duplicate H-1B petitions that are filed on behalf of a foreign worker by the same employer in the same fiscal year will also be rejected. 8 CFR § 214.2(h)(2)(i)(G) explicitly states that “an employer may not file, in the same fiscal year, more than one H1B petition on behalf of the same alien if the alien is subject to the numerical limitations of section 214(g)(1)(A). Filing more than one H-1B petition on behalf of the same alien in the same fiscal year will result in the denial or revocation of all such petitions.” Multiple H-1B petitions filed on behalf of the same alien by different employers during the same fiscal year is permitted although approval of such petitions is discretionary. According to USCIS, petitioners may be asked to demonstrate that a ‘legitimate business need’ exists in filing more than than one H-1B petition for the same alien. In such circumstances a request for evidence, notice of intent to deny, or notice of intent to revoke may result. This is true of both cap-subject and cap-exempt petitions filed by different employers for the same alien.

H-1B petitioners (employers) may request premium processing at the same time that the H-1B petition is filed by signing and completing Form I-907 and including the corresponding fee. Alternatively, petitioners may request premium processing once CIS notifies the petitioner whether the petition has been accepted or rejected. USCIS will not begin premium processing for H-1B cap petitions until May 16, 2016. If you are an American employer who is interested in filing an H-1B petition for a foreign worker, you must act quickly. Filing an H-1B petition is a very complicated and long process. For one if you have never sponsored a foreign worker, you will be required to register your FEIN with the Department of Labor before filing the H-1B petition. Secondly, if the foreign worker you wish to hire received their foreign degree abroad, they must obtain an academic evaluation from an accredited evaluation service. If the foreign worker you wish to hire does not have formal education, but has extensive experience in the specialty occupation, they will need to obtain work experience letters from individuals who can attest to their experience. Thirdly, once an employer has registered their FEIN with the Department of Labor, they will be required to file a Labor Condition Application with the Department of Labor and include the certified LCA with the H-1B petition. Certification of the LCA takes time. The LCA is an attestation made by the employer that they will pay the foreign worker at least the actual or prevailing wage for the occupation, whichever is higher, based on the physical location where the foreign worker will be employed. Once properly submitted to the DOL, the LCA alone takes approximately 2 weeks to be certified by the LCA. This means that in order to meet the April 1st priority date of filing, employers have a very limited period of time to decide whether they will file an H-1B petition for a foreign worker for the upcoming fiscal year. When in doubt it is best not to rush the process.

Last year, our office filed approximately seventy-six H-1B petitions for fiscal year 2016. Approximately 75% of these petitions were filed for the regular Bachelor’s cap, while only 18% of these petitions were filed for individuals holding U.S. Master’s degrees or higher. Approximately 82% of these petitions were filed with the California Service Center, while only 17% of these petitions were filed with the Vermont Service Center. The top H-1B specialty occupations, filed for fiscal year 2016 included: software engineer, technical writer, general manager, market research analyst, business specialist, budget analyst, and graphic designer.

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