Garry Davis' Blog

For people wanting to know how an immigrant visa (also referred to as permanent residency or a “green card”) can be obtained through a family member.

Citizens and permanent residents of the United States have the ability to petition the federal government for an immigrant visa for certain family members.  US citizens can petition for more categories of family members than permanent residents can.  The amount of time between the date the petition is filed and the date when the family member actually obtains the immigrant visa can vary wildly – anywhere from 6 months to 20 years or more.  The wait time is determined by the immigration status of the petitioner (are they a citizen or a permanent resident?), the category of family member they are petitioning, and what country the family member is from.

Here are the names and descriptions of the family-member categories that citizens and permanent residents may petition for:

US Citizen Petitioners

• Immediate Relatives:
  • Spouse
  • Unmarried child under 21 years old
  • Parent (the US citizen petitioner must be at least 21 years old)
  • First Preference
    • Unmarried child over 21 years old (and his or her children)
    • Third Preference
      • Married child of any age (and his or her spouse and children)
      • Fourth Preference
        • Siblings (and his or her spouse and children)

Permanent Resident Petitioners

• 2A Preference
  • Spouse
  • Unmarried child under 21 years old (and his or her children)
  • 2B Preference
    • Unmarried child over 21 years old (and his or her children)

Every year, the US government authorizes a set number of immigrant visas for the family-based categories.  Every year, more citizens and permanent residents file petitions for their family members than there are immigrant visas authorized.  This has created a years-long backlog in the system.

The government assigns each of the different types of family petitions a priority.  Some family relationships have a higher priority than others, meaning those family members will generally get their permanent residency faster.  The government also prioritizes the petitions for immigrant visas based on the country that the family member is immigrating from.  Mexico, China, India, and the Philippines have individual waiting times because family members from these countries account for many of the requested immigrant visas.

The family relationship categories with the highest priority have a special name.  They’re called “immediate relatives.”  The spouses, unmarried children under 21 years old, and parents of US citizens are immediate relatives.  Immediate relatives have immigrant visas instantly available to them.  Once the initial petition by the US citizen is approved by US Citizenship and Immigration Services, the immediate relative may immediately file an application for the immigrant visa – sometimes it can even be filed together with the initial petition.

Those family relationships which are not immediate relatives are called “preference categories.”  The people in preference categories must wait until an immigrant visa is available for them before they can apply for one.  Every petition filed by a citizen or permanent resident which is approved is given a priority date (generally, it’s the date on or near when the petition was received by USCIS).  The US Department of State publishes a visa bulletin every month which lists each preference categories with a date.  Immigrant visas are available to anyone in that preference category whose priority date is earlier than the date on the visa bulletin.  Waiting for a priority date to become current can take many years.

Once an immigrant visa is available to the intending immigrant family member, other factors such as the person’s US immigration history, criminal history, and current location will determine where he or she qualifies for permanent residency and where the application should be filed – inside or outside of the United States.

It is important that you consult with an attorney who is experienced in US immigration law before filing petition or application with the government.  Please visit our webpage for any more questions.

Adjustment of status is the process of applying for an immigrant visa (“green card”) inside the United States.  How can an undocumented immigrant apply for adjustment of status?

It is necessary to define an undocumented immigrant as someone who is living and/or working in the United States and either entered illegally or is now out of status.

When an immigrant visa becomes available to an undocumented person (through a family relationship, an employer, etc.) the immigrant will need to identify the appropriate process to pursue in order to apply for the immigrant visa.  The visa can be obtained either outside or inside the United States.  There are two ways for an undocumented immigrant to apply for permanent residency in the United States and avoid having to return to their country of birth/citizenship. 

Immediate Relatives Who Entered Legally

Immigration law allows certain people to apply for adjustment of status regardless of the fact that they are in the US illegally and/or have worked in the US without authorization, so long as the person can prove that they entered the US legally.  These people are called “immediate relatives” and consist of:

• Spouses of US citizens
• Unmarried children under 21 years old of US citizens
• Parents of US citizens (citizen must be at least 21 years old)

An immediate relative who is applying for permanent residency through their US citizen spouse, parent, or child and who can prove that they were inspected an admitted at a port of entry by US immigration, has the right to apply for permanent residency by submitting Form I-485 inside the United States.

People Who Are Protected by 245(i)

For those people who entered legally, failed to maintain legal status, but are NOT immediate relatives, and for those people who entered illegally, there is still a possibility of applying for adjustment of status.  Section 245(i) of the Immigration and Nationality Act allows such a person to adjust their status to permanent resident if they meet certain qualifications and pay a $1000 penalty fee.

A visa petition or labor certification must have been filed on your behalf on or before April 30, 2001.  If the visa petition or labor certification was filed between January 15, 1998 and April 30, 2001, the applicant must prove that they were physically present in the United States on December 21, 2000.  If the visa petition or labor certification was filed before January 15, 1998, the applicant does not have to prove that they were in the United States on any particular date.

The person does not have to be seeking an immigrant visa through the petition or labor certification filed before April 30, 2001.  That petition or certification can be used as the means to qualify for adjustment of status under 245(i) while obtaining an immigrant visa through a petition filed many years later, for example, by a recently-acquired US citizen spouse.

If someone filed a visa petition or a labor certification for you prior to April 30, 2001, be sure to consult with an experienced immigration attorney in order to determine if you are protected under 245(i).

Not Everyone Who Qualifies to Apply for Adjustment of Status Will Qualify for Permanent Residency

Meeting the requirements to apply for adjustment of status in the United States is only part of the process.  The applicant still needs to qualify for permanent residency.  Immigration law identifies several things that will bar a person from obtaining permanent residency, including a person’s criminal, immigration, and medical history.  It is extremely important that a person consult with an attorney experienced in immigration law before applying for any immigration benefit, including adjustment of status.  The consequences of applying for something that you don’t qualify for could be severe, including deportation.

E-28 should be on the top of any filing. 2.3(c)

Primary attorney or notice attorney will receive notices, but all attorneys may make appearances who have an E-28 filed and all attorneys will have the same obligations regardless of whether they are the notice attorney or not. Any attorney with an E-28 on file may file documents. 2.3(e)

Attorneys who change their address or phone number must notify the court on each case in writing. The EOIR change of address form EOIR-33IC should not be used for an attorney change in address or phone number, however a new E-28 is required for each case. 2.3(h)

If a motion to substitute counsel has been filed, no motion to withdraw needs to be filed. Also, since anyone who has an E-28 on file can represent the respondent in the proceeding, we will no longer have to worry about the IJ permitting the substitution before proceeding (See 2.3(e)). 2.3(i)

Appearances “on behalf of” another attorney may be requested. It allows another attorney, of the same firm or not, to appear on behalf of another attorney who has a conflict with the scheduled hearing. The IJ must approve the request. At that hearing counsel appearance on behalf of another attorney may submit documents, but not at any other time, and the primary counsel is not substituted – does not need to file a new E-28. 2.3(j)

The Court does not observe the “mailbox rule.” Documents are not received until they are in the hands of the clerk’s office. 3.1(a) However, documents are served on opposing counsel when they are deposited with the delivery agent. 3.2(c).

Must use separate envelopes for separate matters being filed with the court. 3.1(a)

For non-detained respondents, documents and motions must be filed at least 15 calendar days prior to the master hearing if the attorney would like a response to the motion or documents at or before the master hearing. Reply must be received 10 days after filing with the court or the motion will be considered unopposed. 3.1(b)

For non-detained respondents, documents and motions must be filed at least 30 calendar days prior to the individual hearing. Responses must be filed within 15 calendar days. 3.1(b).

Filing deadlines for detained respondents for all hearings will be set by the IJ depending on the specific situation. My recommendation is to follow the 15 calendar days rule. 3.1(b)

Responses to motions to reopen must be filed within 15 days. 3.1(b).

“Day” means calendar rather than business day. 3.1(c).

Improper or deficient filings may be returned. Deadlines still apply, so correction of the deficiency and return to the court must be done within the filing deadlines. Otherwise a motion to accept late filing must be included. 3.1(d)

If you file by mail and would like a copy with the court’s date and time stamp, you must provide the court with a copy marked “Conformed Copy – Return to Sender.” 3.1(f)

Proof of service is more comprehensive that previously required. Must include the name or title of the person being served, their detailed address, the date of service, means of service, an explanation of the documents being served – not just “the attached” or “the foregoing.” Proof of service may be signed by an agent authorized by the attorney of record, but the filing itself cannot be. 3.2(e)

Specific documents and orders are suggested for different types of filings. For example, an application for relief should be in the following order: E-28 if required, cover page, fee receipt, application, proposed exhibits with table of contents, and proof of service. 3.3(c)

Table of contents and document submissions should be paginated. Subsequent filings should resume pagination. 3.3(c)

Tabs should be letters rather than numbers. 3.3(c)

Each filing should have a cover page, which includes the name and address of the filing party, title of the filing, name and A# of the respondent, type of proceeding, and date and time of the hearing. 3.3(c)

Times Roman 12 point font is preferred, as is double-spacing with single spacing footnotes. 3.3(c)

The party with the burden of proof must submit a criminal history chart if the Respondent has any criminal issues. The chart must include the arrest date, court docket number, charge, disposition, and a discussion of the immigration consequences, if any for each offense. The chart should be paginated to correspond to the criminal record attached to the chart. 3.3(f)

Proposed witnesses lists should include a summary of the testimony and the estimated length of time the direct examination will last. 3.3(g)

Prehearing briefs and subpoena instructions are included. 4.19(c), 4.20

All motions must be accompanied by a proposed order. 5.2

Information about bonds, juveniles, FOIA, etc. is also very good.

The appendices are very good – outlined as follows.

A is court addresses

B is EOIR directory

C is Organizational Chart

D is Deadline chart – very helpful

E is for Forms

F is a sample cover page – we all need to be using this

G is Sample Proof of Service – we all should be using this

H is Certificate of Translation – we all should be using this

I is helpful numbers with EOIR

J is a citation format guide – we all should be using this

K is a flowchart describing where to file

L is a sample written pleading

M is a sample oral pleading

N is a sample subpoena

O is a sample criminal history chart

P is a sample table of contents

Q is a sample proposed order

There is also a glossary and an index

If you have any questions, please visit our website at www.gldlaw.com or call us at 1-800-860-4234

In these troubled economic times, employers are having to take drastic steps to survive. As unemployment continues to rise in the US, many H-1B nonimmigrant visa holders will likely find themselves without a job and looking for answers. Following is a general discussion of the options available to H-1B nonimmigrants who become casualties to the economic downturn.

The first thing you should know as an H-1B nonimmigrant is that your employer is required to pay your way home if you are terminated. That does not mean you can walk into the CEO’s office and demand the cost of a plane ticket home in dollars. But if you are leaving the US, your employer is required to pay your way home – but only if you are leaving. Have them review the H-1B Petition and Labor Condition Application, which they signed and submitted, very carefully, and they will see that they agreed to do this at the time of filing.

If your H-1B Petition was “cap subject,” meaning that you had to qualify for the approval through the lottery selection system when your original H-1B petition was filed, then you have the right to transfer that H-1B Petition to another H-1B employer. There are some limitations to transferability. First, the position being offered must qualify as an H-1B job. It must be professional in nature and require a specific Bachelor’s or higher degree for entry into the position. You can reasonably assume, although this is not a certainty, that if you are being offered a similar position to the H-1B position you were in most recently, the position will likely be considered an H-1B job.

Second, you should file the H-1B transfer within 60 days of your last paycheck, preferably 30 days and preferably the regular paycheck and not the severance paycheck. Technically, an H-1B nonimmigrant is out of status the day he or she is terminated. A person who is out of status cannot change or extend his or her nonimmigrant status. USCIS has an unwritten practice of granting extensions or changes of status to H-1B nonimmigrants who file within 60 days of the date of the last paycheck. This could change at any time, but it has historically been the practice. Look for a new job fast!

Third, there is some discussion on the wires about filing to change status to F-1 student, B-2 visitor and the like to give a person more time to seek new H-1B employment. The idea would be to then have the new employer file a new H-1B petition while the F-1 or B-2 application is pending. There is a serious issue with this practice. Several years ago, the government stopped permitting “bridging” status through a policy memorandum issued out of headquarters. “Bridging” is the practice of filing an extension of change of status and then while that extension or change is pending, filing another one.

For example, a B-2 nonimmigrant visitor comes to the US and receives permission to be in the US for six months. Before the six month period expires, the person files for an extension of status for an additional six months. While that extension request is pending and after the initial six month entry period has expires, the person files another application seeking to change status to F-1 student. In the old days, the immigration service would have considered the change of status to F-1 a permissible filing because the extension request was pending. This was called “bridging” of status.

The immigration service has stopped permitting bridging. So, the only way to make bridging work is to finish the bridge before crossing it. What I mean it, the interim status application, whether it is a change of status application to B-2 visitor or F-1 student, must be granted so that the person has a new status at the time the H-1B transfer is filed. Problem is the immigration service frequently takes longer to adjudicate a change of status to B-2 visitor than the maximum period requested, meaning the person will still have no status when trying to file for a change back to H-1B. Playing with bridging is like playing with fire. It is complicated and should not be handled without professional help.

Fourth, what options do you have if you worked for a government research institution, a US university or other employer that is exempt from the H-1B quotas? You have not taken a visa from the quotas, unless you did with a previous employer, and therefore will not be able to transfer into a position that is subject to the H-1B quotas. Options are limited, but if you happen to be laid off before and close to April 1 of that year, you will have a good chance of obtaining a visa from the quota to start work October 1 of that same year for a cap subject employer.

Finally, what is one to do if no job is found within the 60 day period from the termination of employment? Understand that as long as you do not leave the US for more than 1 year, you will always have the H-1B visa from the quotas. As stated above, an H-1B nonimmigrant is out of status the day he or she is terminated. But a person is not unlawfully present in the US until the government terminates the status (i.e. through removal proceedings or a change of status application denial) or the person’s I-94 status document expires.

Unlawful presence has consequences to a person’s ability to obtain a visa from the US consulate. Being out of status by itself does not. When someone is unlawfully present in the US for more than 180 days, that person cannot come back to the US for 3 years. The inadmissibility period increases from 3 years to 10 years if the person is unlawfully present in the US for more than 1 year.

With those points in mind, what happens if the I-94 status document is unexpired, the government has not terminated the I-94, and it has been more than 60 days from the last paycheck when you find a new employer. The employer will file a new H-1B Petition without requesting a change or extension of status. You will take that approval to the US consulate, obtain a new visa, and reenter the US to go back to work. Or if you already have an H-1B visa in the passport, even with a different employer, you may take the new petition approval, leave the US and reenter with a new I-94 to go back to work. If you are Canadian, you are H-1B visa exempt, so it will just be a matter of taking a trip out of the US and reentering legally with your passport and the new petition.

However frustrating and difficult it is to be laid off, being an H-1B compounds the anxiety. But as explained above, there are options. So, keep up hope and happy new job hunting!

Garry Davis is an attorney with the Law Offices of Garry L. Davis, PC. He is licensed to practice law in Texas and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. You can find him at www.gldlaw.com.

As an immigration lawyer, I frequently have to deal with issues arising from taxation of non-US citizens. We must submit tax returns to support various types of applications, including family or business sponsorship and to survive deportation from the US. This article will focus on tax issues in family sponsorship situations, with one exception: filing as the spouse of a US citizen creates its own issues that are best addressed in its own article.

A foreign national may be sponsored for permanent residence by a US citizen or Lawful Permanent Resident spouse, by a US citizen parent, by a Lawful Permanent Resident parent if the person is single, and by US citizen brothers and sisters. Once the sponsorship “petition” is filed, the person has a place in line to wait for a visa under the annual quotas. This place in line is called a “priority date.” When a visa becomes available under the quotas based on the priority date, the sponsor must submit tax returns to demonstrate that they have sufficient income to support the relative coming to the US. The critical number used to establish this is the sponsor’s adjusted gross income from the 1040 form.

The sponsor’s AGI must exceed 125% of the poverty guidelines as set by the US Department of Health and Human Services for that sponsor to qualify. The required income amounts are listed on the US Citizenship and Immigration Services Form I-864P, which can be found under the forms and fees section of www.uscis.gov. For a household of 2 people, which would be a single person sponsoring one immigrant with no children to either person, the required AGI on the most recent tax year’s 1040 form is $17,500 for 2008. That will have to be documented with the 1040 form itself and with a W-2, 1099 or relevant schedules from the 1040 form, in addition to current proof of business ownership or employment.

If the sponsor does not have sufficient AGI, then the immigrating relative will have to find a US Citizen or Lawful Permanent Resident to be the financial co-sponsor on the case. A co-sponsor is not required to be related to the sponsor or the immigrating relative, but must meet the AGI requirements independently. In other words, the law does not allow us to cumulate the sponsor’s and the co-sponsor’s incomes to meet the requirement.

In the event a sponsor cannot meet the income requirement, assets may be factored into the analysis. For assets to qualify the sponsor, they must be reasonably liquefiable within 12 months, and must be valued at 5 times the income deficiency. So, for example, a single person sponsoring one relative who had zero AGI on the most recent tax return could still qualify as a sponsor if he or she could show $87500 in currently owned assets. These would include a house with that much equity, cards, funds in bank or investment accounts, even household items, but only if the value can be conclusively demonstrated. For more information please visit my website at www.gldlaw.com.

Client: How long does it take to get a “green card?”

Dallas Immigration Attorney: “The ‘green card’ typically takes about 18 months to process, although it can take longer. Typically from establishing the business to becoming a permanent resident takes about

3-4 years, depending on how quickly the business grows.”

Some good news from congress. I have attached a blurb from the Los Angles Times. The link is blow if you want to read the whole article.

“NEW YORK (AP) — A legal provision criticized for making personal tragedies worse by triggering the automatic deportation of a small group of widows and widowers of U.S. citizens will not be in effect for much longer.

Congress gave final approval Tuesday to legislation that would effectively abolish a provision known as the “Widow’s Penalty.” The measure is part of a bigger Homeland Security bill that President Barack Obama is expected to sign…” to read more please go to http://www.latimes.com/news/nationworld/nation/wire/sns-ap-us-widows-penalty,0,2586378.story