Tag Archives: LPR

Part Six: Reclassification of Certain Relatives as “Immediate” Relatives

Immediate Relatives

· Reclassifies spouses and minor children of lawful permanent residents as immediate relatives. Extends to them the protections for immediate relatives in case of death of or abuse by a U.S. citizen or an LPR spouse or parent.

· Allows derivatives (spouse or child) for immediate relatives.

· Includes “child” to protections given to spouses in case of death of or abuse by USC spouse or parent.

· Continues to include the requirement that the immediate relative petition be filed within two years of the death of the qualifying relative; however, Section 2312 expressly removed the two-year requirement.

Visa Allocation

· Allocates worldwide level for family-sponsored immigrant visas.

o Unmarried sons and daughters of USCs: 20 percent of worldwide level

o Unmarried sons and daughters of LPRs: 20 percent of worldwide level + unused visas for unmarried sons and daughters of USCs

o Married sons and daughters of USCs: 20 percent of worldwide level + unused visas for unmarried sons and daughter of LPRs

o Siblings of USCs: 40 percent of worldwide level + unused visas for married sons and daughters of USCs

Termination/Reinstatement of Registration

· Includes circumstances when an individual’s registration for an immigrant visa shall be terminated:

o Failure to apply for adjustment of status within one year following notification of visa availability

o Failure to apply for an immigrant visa within one year following notification of visa availability

ALLOCATION OF IMMIGRATION VISAS.

· Allocates visas for unmarried sons or daughters of U.S. citizens to not exceed 35% of worldwide level (change from 23,400)

· Allocates visas for married sons or daughters of USCs under 31 years of age at the time of filing to not exceed 25% of the worldwide level. (CHANGES from all married sons or daughters, to only those under 31 years of age at time of filing, and changes number from 23,400)

· Allocates visas for unmarried sons and daughters of LPRs not to exceed 40% of the worldwide level (change from 114,200)

· Removes limit on spouses and children of LPRs. (Now considered immediate relatives.)

· Eliminates the visa category for brothers and sisters of USCs.

· Visa petitions which automatically convert:

o Unmarried son or daughter of a USC to a married son or daughter category upon marriage, irrespective of age of the alien.

o Married son or daughter of a USC to an unmarried son or daughter of a USC upon dissolution of a marriage or death of the alien’s spouse.

· Above-listed family-based visa provisions are effective as of the first day of the first fiscal year that begins at least 18 months after the enactment of this Act.

· Exempts certain aliens (derivative beneficiaries of employment-based immigrants; aliens with extraordinary ability in the sciences, arts, education, business, or athletics, outstanding professors and researchers; multinational executives and managers; doctorate degree holders; and physicians who have completed the foreign residency requirements or obtained a waiver of those requirements or an exemption was requested by an interested state or federal agency) from being subject to the worldwide levels or numerical limitations.

· Expands treatment of family members to also include derivative beneficiaries of aliens described above.

· Renames §203(b)(2) from “Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability” to “Aliens who are members of the professions holding advanced degrees or advanced degrees in a STEM field.”

· Allocates visas for professionals holding advanced degrees to not exceed 40% of the worldwide level. (Increased from 28.6%.)

· Eliminates the requirement for those who received an advanced degree in a STEM field from being subject to the worldwide levels or numerical limitations if the immigrant earned a graduate degree at the level of master’s or higher in the STEM field from a U.S. institution of higher education, has an offer of employment from a U.S. employer in a related field, and earned the qualifying degree within five years immediately prior to filing the petition.

· Removes the requirement of being “sought by an employer in the U.S.” if the Secretary of Homeland Security deems it to be in the national interest.

· Allows the Secretary to grant a national interest waiver if physician will work in shortage area or area with veterans’ facilities, and a federal agency or a local, county, regional, or state department of public health determines that work will be in the public interest.

· Permanent resident status cannot be issued until the alien has worked for five years in the area described above, not including the time spent in J status.

o Time accrues when work commences, not when petition is filed or approved.

o Explains mechanics for how the five-year period is to be counted.

o Unnecessary to file an additional immigrant visa petition due to change of work location.

· Allows physician working in a shortage area or area with veterans’ facilities to file the petition with the Secretary of Homeland Security prior to the completion of the five-year employment requirement.

· Removes the requirement for a labor certification for STEM workers.

· Allocates visas for skilled workers, professionals and other workers to not exceed 40% of the worldwide level. (Increased from 28.6%.)

· Adds that medical doctors must possess a license to practice medicine in the U.S.

· Removes the limitation on “other workers.”

· Allocates visas for certain special immigrants to not exceed 10% of the worldwide level.

· Allocates that visas for employment creation (EB-5) are not exceed 10% of the worldwide level.

No More ADIT-Stamps from USCIS (for now).

Recently the USCIS has been implementing nationwide changes throughout its Field and District Offices that essentially do away with the practice of issuing so-called ADIT-stamps to Approved Adjustment Applicants.

ADIT-stamps are rectangular red-ink stamps placed into the passports of Applicants who have been approved for Green Card resident status, as temporary evidence of such approval / status, while the actual Green Card is in processing.

Unless there is a bona fide “Emergency”, USCIS will no longer issue such stamps, since the overall card production and delivery (via certified Postal Service) is now within 3-4 weeks.

Re-Entry on Expired Green Card? Generally, yes.

Most Permanent Resident Cards, commonly known as “Green Cards” (Form I-551), currently in circulation, have an expiration date and are required to be renewed every ten years. This enables the U.S. government to improve the quality of the card and make it less susceptible to fraud/forgery.

According to the DHS’ Customs and Border Protection (CBP), Permanent Residents who have an expired ten-year Card (Form I-551) and are presently outside the U.S. may STILL enter the U.S. without the issuance of a transportation letter provided they have not been absent from the U.S. for more than 180 days.

Please be advised that lawful permanent residents with an expiring/expired Permanent Resident Cards do not lose their legal status in the United States – their lawful permanent resident status does not expire or change.  Think of it as an expiring passport (an expiring passport does not change or affect your nationality/citizenship.).

However, they should renew their expiring Permanent Resident Cards in order to maintain acceptable evidence of their permanent resident status and avoid possible difficulties in obtaining employment, benefits, and re-entry into the United States after traveling abroad.

Transportation Companies are authorized to permit boarding of any bona fide Lawful Permanent Resident (LPR) in possession of an expired Permanent Resident Card with a ten-year expiration date and who has not been absent from the U.S. for more than 180 days, if the expiration date on the card is the only reason that the LPR would otherwise not be boarded.

Airlines are to permit boarding without any penalty to the LPR. However, Carriers must be informed that this policy does not apply to Conditional Permanent Resident cardholders.   CR-card holders must contact the nearest U.S. Consulate with a DHS-office prior to making travel arrangements to the United States.

“Re-Entry Permit” OR “Returning Resident Visa” ?

Generally, a Greencard holder (aka “Lawful Permanent Resident”) is required to maintain his/her worldwide domicile and residence in the United States, and should be physically present during 6 months of any 12-month period.   Absences from the United States for over 12 months, can lead to a loss of the permanent resident status and lead to revocation of the Green Card, if certain precautions are not taken.

A Greencard holder who knows that he/she will be absent abroad (i.e. outside the U.S.) for a year or more, for sufficient cause (such as extended travel, temporary employment, course of study / training, etc.), may and should apply for a Reentry Permit. The application for issuance of a Reentry Permit, Form I-131, must be submitted prior to his/her departure from the United States.  A Reentry Permit is generally valid for 24 months at a time.

Persons who have remained outside the United States for one year or more without a valid Reentry Permit, or beyond the validity of a Reentry Permit, may be eligible to apply for a “returning resident visa” (“SB-1″) with the Department of State Immigrant Visa Section at a U.S. Consulate.

A provision exists under U.S. visa law for the issuance of a returning resident special immigrant visa to an LPR who remained outside the U.S. (often due to circumstances beyond his/her control). You will need to be interviewed for both your application for returning resident status, and usually later for the immigrant visa. An SB-1 applicant is required to establish eligibility for an immigrant visa and have a medical examination. Therefore, this involves paying both visa processing fees and medical fees.

Under provisions of immigration law, to qualify for returning resident status, you will need to prove to the Consular Officer that you:

  • Had the status of a lawful permanent resident at the time of departure from the U.S.;
  • Departed from the U.S. with the intention of returning and have not abandoned this intention; and
  • Are returning to the U.S. from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond your control and for which you were not responsible.

If, after reviewing your Application to Determine Returning Resident Status, Form DS-117, and supporting documents, the Consular Officer determines that you do not meet the criteria for a Returning Resident (SB-1) immigrant visa on the grounds that you have abandoned or relinquished your residence in the U.S., you may have to apply for an immigrant visa on the same basis and under the same category by which you immigrated originally.

CBP Changes its Policy on NTA’s and Deferred Inspections

Beginning on October 1, 2009, returning Legal Permanent Residents (LPRs) with criminal convictions are now more likely to be issued a Notice to Appear (NTA) at ports of entry, rather than the more usual grant of deferred inspection.

In addition, depending on the nature of the conviction, CBP staffing, and available detention bedspace, among other factors, it also is possible that more returning LPRs with criminal convictions will be detained. CBP confirmed, however, that deferred inspection for such returning LPRs is still an option.

These changes in policy are largely due to an appreciable increase in “No-Shows” of those who were previously granted deferred inspection.

USCIS to Experience Delays in Producing Green Cards

USCIS has just announced a possible eight week delay in the production and delivery of their permanent resident cards while they are in the process of upgrading our card production equipment.

Local USCIS Field Offices will be issuing I-551 travel stamps to applicants approved for permanent residence at the time of their interview. Applicants are to take their passport the appointment at the Field Office.

If necessary, please make an INFOPASS appointment to be issued temporary evidence of permanent residence in the form of an I-551 stamp.

“DREAM ACT” Introduced in U.S. Senate and House

Some aspects of Immigration Reform are starting to materialize in Congress.

This week, Senators Durbin and Lugar introduced the DREAM Act  in the Senate while Representatives Berman and Diaz-Ballart did the same in the House.   Immediately below is background information on the DREAM Act.

DREAM Act
(based on prior Senate proposal in 2007)

Who is eligible?
Those who would qualify under this act include undocumented immigrants who meet ALL of the following criteria:

§         Graduated from a United States high school by the time they apply for relief.
§         Must have lived continuously in the United States for a minimum of 5 years, on the date of the DREAM Act enactment.
§         Entered the U.S. before the age of 16.
§         Under 30 years of age
§         Can demonstrate good moral character and do not have a criminal record.
§         Attended a college / university for 2 years, OR served in the US military for 2 years either before or after enactment.

What are the benefits for those who qualify?

§         Lawful permanent resident status (a green card)
§         Access to federal financial aid
§         States will be permitted to allow eligible students to obtain resident tuition status

Why is this necessary?

The DREAM Act would address the immigration status and educational barriers confronted by U.S.-raised children of undocumented immigrants.  (These statistics are from 2007 version of this information.)

§         Currently, there are 2.7 million immigrant children in U.S. schools grade K-12 and of those 1 million are undocumented immigrants.

§         Every year 50-65,000 students graduate from American high schools, but face limited prospects for continuing their education because they were originally brought to the United States by parents lacking immigration status. Among these students are valedictorians, honors students and student leaders.

§         Many students are prevented from attending college because they cannot afford out-of-state tuition and do not qualify for Pell grants or student loans. In addition, without a lawful permanent resident “green card” students are not eligible for many scholarships, in-state tuition, federal loans, or grants.

U.S. is Expanding Availability of “Global Entry” at its Airports

U.S. Customs and Border Protection (CBP) announced that “Global Entry” enrollment centers are now open and available at additional international U.S. airports.

“Global Entry” is an initiative to permit registered U.S. citizens and lawful permanent residents to use a self-service kiosk upon returning to the United States from international travel.

The “Global Entry” kiosks allow travelers to bypass the regular passport inspection / immigration control lines, by “checking in” with their U.S. passport or Alien Resident Card into a reader. The kiosk’s on-screen instructions will then prompt users to provide digital fingerprints. In addition, users will be prompted to answer customs- and immigration-related questions via the kiosk’s touch-screen. A transaction receipt will be produced and printed by the kiosk upon completion, which the traveler then must present to CBP officers prior to leaving the inspection area.

Customs and Immigration officials are providing this program to “low-risk international air travelers to expedite the process of returning to the U.S.”

“Global Entry” is now available at the following international U.S. airports:

  • Los Angeles International,
  • Atlanta Hartsfield-Jackson International,
  • Chicago O’Hare International,
  • Miami International,
  • John F. Kennedy International Airport,
  • George Bush Intercontinental in Houston,
  • Washington Dulles International Airport.

Global Entry is currently only open to U.S. citizens or lawful permanent residents. For more information on this or other CBP trusted traveler programs, or for an application to enroll in the Global Entry pilot program, please visit GlobalEntry.gov.

I-9′s now being requested during Adjustment Interviews? Really?

Some USCIS adjudication officers at local District Offices are apparently beginning to request copies of Forms I-9 from applicants who are applying for their Green Cards, via the process known as “adjustment of status” (from non-immigrant to permanent resident).

The instruction letters sent out by the USCIS (to the clients whose interview appointments at the local offices are being scheduled), are still silent on this new request.

Be prepared and provide copies of any previous (at least the most recent) I-9 forms to confirm that no prior claim of U.S. citizenship or of LPR status has previously been made. Discuss this with your lawyer, well in advance of the actual interview, preferrably early on in the process.

If a social security number was used and disclosed on the I-9, you should expect questions as to the origin and legitimacy of the number.

Are EB-5 Investment Center Programs in Jeopardy?

The EB-5 Employment Creation / Investor Program was founded in 1990. The program was created for qualified Aliens seeking Permanent Resident status (i.e. Green Cards) on the basis of their investments into the American economy, via active commercial enterprises.

Unknown to many, there are actually two flavors of EB-5 programs (the ‘default’  $1 million program and the Regional Center Investment [Pilot] Program which allows for a reduced investment of ‘only’ $500,000).

Under the default provisions of the EB-5 Program, investors who invest $1 million into a U.S. enterprise and employ no less than 10 full-time qualified workers. This program is designed for people who are actively running a business. Most likely, this aspect of the EB-5 immigrant visa category will not be affected by the potential sunsetting later this month, as we approach the new fiscal year (FY2009).

The debate is centered around the EB-5 Regional Center Program, which allows an Alien to invest $500,000 into a pre-screened, USCIS approved Regional Investment Center, in exchange for an initial 2-year conditional resident status for the investor and his/her dependents.

An investment in a Regional Center Program can be passive by nature, and does not require active participation in the business by the investor. This particular EB-5 Regional Center Program is scheduled to end (or “sunset”) on September 30, 2008.

A legislative proposal, known as H.R. 5569, introduced in the House of Representatives, on March 10, 2008, and passed on June 9, 2008 is currently up for debate in the Senate. This proposal, which would extend the Regional Center program for 5 additional years, is at an impasse, because some legislators want to include other, more restrictive immigration provisions to the proposed bill.

Is the EB-5 Regional Center Program in jeopardy? Potentially, yes.  As in many other situations, where certain immigration provisions are about to “sunset”, USCIS has not issued guidance as to what will happen with cases submitted prior to September 30, 2008 that are considered pending.

There is speculation that USCIS may suspend accepting and adjudicating of EB-5 petitions, until Congress reauthorizes the EB-5 Regional Center Program.

Personally, I am very hopeful that the program will be extended. The Benefits of the program, and the EB-5 category in general, are obvious, and result in an all-round WIN-WIN for everyone involved.

Please keep in mind that the “traditional” EB-5 applications using a $1 million investment will not be affected by a potential sunsetting of USCIS’ Regional Investment Center Program.